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In the Matter of Ralph Alicea v. Brian Fischer

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


November 10, 2011

IN THE MATTER OF RALPH ALICEA, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Mercure, J.P., Peters, 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 a prison disciplinary rule.

Pursuant to a search of petitioner's prison cell, several items were found that were determined to be contraband, and he was served with a misbehavior report charging him with various prison disciplinary infractions. During the course of the tier III disciplinary hearing that followed, the Hearing Officer dismissed all of the charges against petitioner except possession of gang-related material. Petitioner was found guilty of that charge at the conclusion of the hearing, and the determination was affirmed upon administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.

We confirm. The misbehavior report, testimony of the correction officers who performed the search and testimony of the gang expert who identified the poster found in petitioner's cell as depicting gang-related images provide substantial evidence to support the determination (see Matter of Flournoy v Bezio, 84 AD3d 1636, 1637 [2011]; Matter of Harvey v Bradt, 81 AD3d 1003, 1003 [2011]). Petitioner's protestations and the testimony of his inmate witness that the poster had been placed in petitioner's cell without his knowledge raised credibility issues to be resolved by the Hearing Officer (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]; Matter of Williams v Fischer, 84 AD3d 1661, 1662 [2011], lv denied 17 NY3d 711 [2011]).

Turning to petitioner's procedural contentions, we find that the misbehavior report contained sufficient information to allow him to prepare an adequate defense (see Matter of Cruz v Bezio, 79 AD3d 1509, 1509 [2010]; Matter of Davis v Fischer, 78 AD3d 1416, 1416 [2010]). We also find no merit to petitioner's claims that he was denied the right to call certain witnesses. With regard to inmate Nelson, sufficient inquiry was made to determine that his refusal to testify was genuine (see Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12 NY3d 709 [2009]; Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1114 [2006], appeal dismissed 8 NY3d 943 [2007]) and, as to the remaining witnesses, the Hearing Officer properly determined that they were either unavailable or their testimony would be irrelevant (see Matter of Lebron v McGinnis, 26 AD3d 658, 659 [2006], lv denied 7 NY3d 704 [2006]; Matter of Lebron v Goord, 6 AD3d 997, 998 [2004]). We have examined petitioner's remaining contentions and find them to be either unpreserved or lacking in merit.

Mercure, J.P., Peters, 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

20111110

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