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In the Matter of Demitri v. Brian Fischer

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


April 19, 2012

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

The opinion of the court was delivered by: Peters, P.J.,

MEMORANDUM AND JUDGMENT

Calendar Date: February 21, 2012

Before: Peters, P.J., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

A correction officer witnessed petitioner cut another inmate and cause a laceration to the inmate's face. As a result, petitioner was charged in a misbehavior report with assaulting the inmate. Following a tier III disciplinary hearing, petitioner was found guilty and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author and the related documentation, provide substantial evidence supporting the determination of guilt (see Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010], lv denied 16 NY3d 707 [2011]; Matter of Vassell v Goord, 26 AD3d 547, 547 [2006]). Although petitioner asserts that the misbehavior report was not properly endorsed, there is nothing in the record to indicate that the officer who detained him witnessed the incident or acquired personal knowledge of the facts. In view of this, the officer's endorsement was not necessary, and petitioner has failed to demonstrate that he was prejudiced by its omission (see 7 NYCRR 251-3.1 [b]; Matter of Page v Fischer, 64 AD3d 1067, 1068 [2009]). Likewise, the record discloses that valid extensions were obtained to begin the hearing (see 7 NYCRR 251-5.1 [a]) and that it was commenced and completed within the authorized time period (see Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]; Matter of Berry v Goord, 13 AD3d 947 [2004]). Finally, petitioner's claim of Hearing Officer bias has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Britt v Fischer, 54 AD3d 1087 [2008]; Matter of Branch v Goord, 4 AD3d 699, 700 [2004]).

Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120419

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