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In the Matter of Jose A. v. Brian Fischer

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


November 23, 2011

IN THE MATTER OF JOSE A. FUENTES, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Appeal from a judgment of the Supreme Court (Cerio, J.), entered February 7, 2011 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

MEMORANDUM AND ORDER

Calendar Date: September 28, 2011

Before: Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ.

After petitioner, a prison inmate, forwarded a handwritten document to the law library with the request that it be typed, the document was determined to be a redemption document and petitioner was charged in a misbehavior report with unauthorized possession of a Uniform Commercial Code document. He was found guilty of that charge following a tier III disciplinary hearing and that determination was affirmed on administrative appeal.

Thereafter, he commenced this CPLR article 78 proceeding and Supreme Court dismissed the petition. Petitioner now appeals.

We affirm. To the extent that petitioner challenges the determination based upon substantial evidence, the misbehavior report, copies of the documents and petitioner's admissions during the hearing provide the quantum of proof necessary to support the determination of guilt (see Matter of Bunting v Fischer, 85 AD3d 1473, 1474 [2011], lv denied ___ NY3d ___ [Oct. 18, 2011]; Matter of Samuels v Department of Correctional Servs. Staff, 84 AD3d 1629, 1630 [2011]). Petitioner's remaining claims are either unpreserved for this Court's review by his failure to raise them during the disciplinary hearing (see Matter of Vidal-Ortiz v Fischer, 84 AD3d 1627, 1628 [2011]; Matter of Abreu v Fischer, 83 AD3d 1348, 1348-1349 [2011]) or have been examined and found to be without merit.

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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