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In the Matter of Jose Quezada v. Brian Fischer

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


June 23, 2011

IN THE MATTER OF JOSE QUEZADA,
PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 11, 2011

Before: Peters, J.P., Spain, Lahtinen, Stein 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 a prison disciplinary rule.

During a search of petitioner's cell, an ice pick-type instrument was found secreted in a green knit hat. As a result, petitioner was charged in a misbehavior report with possessing a weapon. He was found guilty of the charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers involved in the search, provide substantial evidence supporting the determination of guilt (see Matter of Fuentes v Fischer, 56 AD3d 919, 920 [2008]; Matter of Fews v Goord, 54 AD3d 1073, 1074 [2008]). Although petitioner maintained that the weapon had been planted in his cell in retaliation for past grievances and a lawsuit filed by him against certain officers, his testimony, and that of the inmate witnesses he called to attempt to corroborate his story, presented a credibility issue for the Hearing Officer to resolve (see Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]). Contrary to petitioner's claim, the misbehavior report provided sufficient notice of the charge as it set forth the date, time and location of the incident as well as the rule violation and enough details of the misconduct to afford petitioner an opportunity to prepare a meaningful defense (see 7 NYCRR 251-3.1 [c]; Matter of Vines v Goord, 19 AD3d 951, 952-953 [2005]; Matter of Quintana v Selsky, 268 AD2d 624, 625 [2000]). Furthermore, upon reviewing the record, we reject petitioner's claim that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied 13 NY3d 709 [2009]; Matter of Yancey v Conway, 46 AD3d 1042, 1042 [2007]). Petitioner's remaining contentions, to the extent that they have been preserved for our review, have been considered and are lacking in merit.

Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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