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In the Matter of Frank J. Povoski Jr v. Brian Fischer

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


March 8, 2012

IN THE MATTER OF FRANK J. POVOSKI JR., PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: January 23, 2012

Before: Mercure, Acting P.J., Rose, Spain, Stein 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 Superintendent of Clinton Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with being out of place and leaving an assigned work area. According to the report, after attending an inmate liaison committee meeting, petitioner went to his cellblock instead of returning to his assigned work program at the facility law library. Following a tier II disciplinary hearing, petitioner was found guilty of both charges. The determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.

The detailed misbehavior report provides substantial evidence to support the determination of guilt (see Matter of Crenshaw v Fischer, 87 AD3d 1189, 1189 [2011]; Matter of Gillard v White, 79 AD3d 1466, 1466 [2010]). Notably, while petitioner disputed the correction officer's testimony that petitioner did not have permission to be out of place, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v Fischer, 89 AD3d 1333, 1333 [2011]). Moreover, contrary to petitioner's contention, any gaps or omissions in the hearing transcript did not render it so incomplete as to preclude meaningful review (see Matter of Machicote v Bezio, 87 AD3d 763, 763 [2011]).

We have examined the remaining issues raised by petitioner, and find them to be either unpreserved or without merit.

Mercure, Acting P.J., Rose, Spain, Stein and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20120308

© 1992-2012 VersusLaw Inc.



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