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In the Matter of Yokohiro Vidal-Ortiz v. Brian Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


May 19, 2011

IN THE MATTER OF YOKOHIRO VIDAL-ORTIZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, it was determined that petitioner sold marihuana to a confidential informant on two occasions. When petitioner did not receive payment for the second sale, he approached the informant in the yard, accompanied by four or five unidentified Spanish-speaking inmates, and threatened to injure the informant with a weapon unless he received $150. As a result, petitioner was charged in a misbehavior report with selling drugs, making threats and extortion. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Washington v Fischer, 74 AD3d 1659, 1659 [2010]; Matter of Griffith v Selsky, 53 AD3d 884 [2008]). Petitioner's denial of any wrongdoing presented a credibility issue for the Hearing Officer to resolve (see Matter of Rivera v Selsky, 43 AD3d 1210, 1210 [2007]; Matter of Jackson v Goord, 8 AD3d 852, 853 [2004]). His remaining claims are unpreserved due to his failure to raise them at the disciplinary hearing.

Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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