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In the Matter of James Harvey v. Brian Fischer

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


April 19, 2012

IN THE MATTER OF JAMES HARVEY III, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: February 21, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and McCarthy, 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 a search of petitioner's cell, a correction officer found a pen with a needle attached to the ink cartridge. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing contraband. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to possessing an altered item and possessing contraband, he is precluded from challenging the determination of guilt with respect to those charges (see Matter of Rodriquez v Fischer, 76 AD3d 1131, 1131-1132 [2010]; Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]). As for the charge of possessing a weapon, the misbehavior report and related documentation, including a photograph clearly revealing that the item was a dangerous instrumentality (see 7 NYCRR 270.2 [B] [14] [i]), provide substantial evidence supporting the determination of guilt with respect to that charge (see Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]; Matter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]). Although petitioner denied possessing a weapon and asserted that he used the item to cut out pictures from magazines, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Vidal-Ortiz v Fischer, 84 AD3d 1627, 1628 [2011]; Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]). His 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 Hall v Fischer, 87 AD3d 1235, 1236 [2011]; Matter of Crenshaw v Fischer, 87 AD3d 1246, 1247 [2011]).

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

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20120419

© 1992-2012 VersusLaw Inc.



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