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In the Matter of John Spencer v. Brian Fischer

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


November 23, 2011

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

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Mercure, J.P., Lahtinen, Malone Jr., Garry 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.

A correction officer observed petitioner throw a white envelope to another inmate and, before the officer could recover it, the inmate threw it back to petitioner. When the officer finally took possession of the envelope, he discovered a cigarette inside that later tested positive for marihuana. As a result, petitioner was charged in a misbehavior report with drug possession. Following a tier III disciplinary hearing, he was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]; Matter of Lamage v Bezio, 74 AD3d 1676, 1676 [2010]). Although petitioner contends that the envelope was not within his control, the correction officer who wrote the misbehavior report personally observed the exchange between petitioner and the other inmate. Furthermore, while petitioner and the inmate to whom he threw the envelope denied that the envelope belonged to petitioner, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v Fischer, 84 AD3d 1623 [2011]; Matter of Wahhab v Fischer, 77 AD3d 996, 997 [2010]). Contrary to petitioner's claim, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Cooper v Prack, 85 AD3d 1470, 1471 [2011]; Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]). Petitioner's remaining procedural challenge to the misbehavior report is not preserved for our review due to his failure to raise it at the hearing (see Matter of Morusma v Fischer, 74 AD3d 1675, 1676 [2010]; Matter of Collins v Bezio, 73 AD3d 1252 [2010]).

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

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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