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In the Matter of Johnny v. Brian Fischer

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


April 19, 2012

IN THE MATTER OF JOHNNY BUNTING, 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, Kavanagh, McCarthy and Egan Jr., JJ.

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

Petitioner was charged in a misbehavior report with unauthorized Uniform Commercial Code (hereinafter UCC) activity and threats. The misbehavior report relates that petitioner attempted to mail a letter to the Bronx County District Attorney, in which petitioner attempted to engage in a scheme involving the "Redemptive Process" as well as threatened the District Attorney if he did not comply with his directive. Following a disciplinary hearing, petitioner was found guilty only of violating the rule against unauthorized UCC activity.

Contrary to petitioner's contention, the misbehavior report and related documentation, together with the testimony adduced at the hearing, particularly the testimony of an attorney who identified specific language in the letter consistent with the redemptive process, provide substantial evidence to support the determination of guilt (see Matter of Bunting v Fischer, 85 AD3d 1473, 1474 [2011], lv denied 17 NY3d 712 [2011]). To the extent that petitioner claims that the misbehavior report did not provide him adequate notice of the charge because it listed a nonexistent rule number, the author of the misbehavior report explained that it was a typographical error (see generally Matter of Stinson v Prack, 87 AD3d 1218, 1219 [2011]). Moreover, petitioner has demonstrated no prejudice as a result of this clerical error (see id.). Finally, petitioner's challenge to the constitutionality of the subject rule (see 7 NYCRR 270.2 [14]) is not properly before us because it must be raised in the context of a prison grievance procedure (see Matter of Samuels v Department of Correctional Serv. Staff, 84 AD3d 1629, 1630 [2011]).

Petitioner's remaining contentions, including his claim of hearing officer bias and that he was improperly removed from the hearing, have been reviewed and found to be without merit.

Lahtinen, Kavanagh, McCarthy 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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