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In the Matter of Kwame Scott v. Brian Fischer

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


February 2, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, 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 certain prison disciplinary rules.

During the course of an investigation in which a mail watch was authorized to monitor petitioner's mail, it was discovered that petitioner had sent letters containing gang-related references to various individuals. As a result, he was charged in a misbehavior report with participating in gang-related activities and engaging in violent conduct. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentary evidence, together with the testimony of the correction officer who wrote the report and petitioner's own admission to writing the letters, provide substantial evidence supporting the determination of guilt (see Matter of Cornwall v Fischer, 73 AD3d 1367, 1368 [2010]; Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]). We find no merit to petitioner's claim that the misbehavior report was not written in a timely manner inasmuch as it was prepared as the result of a lengthy investigation, which entailed a 60-day mail watch, and was not completed until after all of the intercepted letters had been analyzed for gang-related references. Under the circumstances presented, we find that the misbehavior report was prepared "as soon as practicable" in accordance with the requirements of 7 NYCRR 251-3.1 (a) (see Matter of Norris v Fischer, 71 AD3d 1211, 1212 [2011]; Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009]). Furthermore, we find nothing in the record to support petitioner's claim that the Hearing Officer failed to conduct the hearing in a fair and impartial manner or that the determination flowed from the Hearing Officer's alleged bias (see Matter of Al-Matin v Brown, 86 AD3d 902, 902-903 [2011]; Matter of Barnes v Bezio, 86 AD3d 884, 885 [2011]). Petitioner's remaining contentions, including his claim that the mail watch was not properly authorized, have been considered and are unavailing.

Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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