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In the Matter of Anthony v. Brian Fischer

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


May 17, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: April 4, 2012

Before: Peters, P.J., Spain, Stein, Garry and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging two determinations finding him guilty of violating various prison disciplinary rules following two tier III disciplinary hearings. The first misbehavior report charged petitioner with drug use -- after his urine twice tested positive for the presence of opiates -- and violating urinalysis testing procedures. The second misbehavior report, charging petitioner with obstructing the view into his cell, refusing a direct order and making threats, stated that petitioner refused to remove a sheet hanging in his cell and threatened to stab anyone who entered.

Our review of the record establishes that the misbehavior reports, as well as evidence and testimony at the hearings, provide substantial evidence to support the determinations of guilt (see Matter of Webb v Leclaire, 52 AD3d 1131, 1132-1133 [2008]; Matter of Encarnacion v Goord, 8 AD3d 850, 851 [2004]). Contrary to petitioner's contention, the Hearing Officer properly removed petitioner from the first hearing after petitioner repeatedly failed to comply with the Hearing Officer's warnings to stop interrupting and disrupting the proceeding (see Matter of Pitts v Fischer, 54 AD3d 477 [2008]; Matter of Marie v Goord, 34 AD3d 1019 [2006]). Further, the record belies petitioner's assertion that the determinations of guilt resulted from hearing officer bias rather than from the evidence presented at the hearings (see Matter of Harvey v Bradt, 81 AD3d 1003, 1004 [2011]).

Petitioner's remaining contentions are either unpreserved for our review or have been reviewed and found to be without merit.

Peters, P.J., Spain, Stein, Garry and Egan Jr., JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120517

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