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In the Matter of Anthony v. Lt. J. Miller

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


May 17, 2012

IN THE MATTER OF ANTHONY FRAGOSA, PETITIONER,
v.
LT. J. MILLER, AS HEARING OFFICER, CLINTON CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 4, 2012

Before: Mercure, J.P., Rose, Malone Jr., McCarthy 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 a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During a search of petitioner's cell, a correction officer found a piece of metal, approximately 21/4 inches long, sharpened on one end. As a result, petitioner was charged in a misbehavior report with possessing a weapon. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and visual inspection of the article in question provide substantial evidence supporting the determination of guilt (see Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]; Matter of Gonzalez v Fischer, 53 AD3d 945, 945-946 [2008]). Although petitioner testified that he used the piece of metal to relieve stress by cutting himself, this is not a defense to the charge as it does not change the dangerous nature of the item. Moreover, upon reviewing the record, we find nothing to indicate that petitioner was denied a fair and impartial hearing or that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of McGowan v Fischer, 88 AD3d 1038, 1039 [2011]; Matter of Barnes v Bezio, 86 AD3d 884, 885 [2011]). Petitioner's remaining procedural claims have not been preserved for our review.

Mercure, J.P., Rose, Malone Jr., 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

20120517

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