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In the Matter of Daniel Thomas v. Brian Fischer

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


November 17, 2011

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

Calendar Date: September 28, 2011

Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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.

While packing petitioner's personal belongings after he was escorted to the special housing unit, correction officers found his locker unsecured and his razor missing. As a result, petitioner was charged in a misbehavior report with property loss and, following a tier III disciplinary hearing, he was found guilty of that charge. That determination was administratively affirmed, after which petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the officer who packed petitioner's cell and the log sheet provide substantial evidence to support the determination of guilt (see Matter of George v Bezio, 85 AD3d 1469, 1470 [2011]; Matter of Harris v Fletcher, 30 AD3d 948, 948 [2006]). Petitioner's testimony that his locker was secured when he was taken to the special housing unit presented a credibility issue to be resolved by the Hearing Officer (see Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]; Matter of Smith v Fischer, 85 AD3d 1481, 1482 [2011]). Moreover, the record demonstrates no bias on the part of the Hearing Officer, but rather that the determination resulted from the evidence presented (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]). Petitioner's remaining contentions are unpreserved for our review by his failure to raise them during the hearing (see Matter of Abreu v Fischer, 83 AD3d 1348, 1348-1349 [2011]).

Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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