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In the Matter of John Shields v. Brian Fischer

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


May 24, 2012

IN THE MATTER OF JOHN SHIELDS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: April 4, 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

During a comedic performance that was part of a prison talent show, petitioner used vulgar and profane language and made comments that were disrespectful to staff. As a result, he was charged in a misbehavior report with harassment, interfering with an employee and a creating a disturbance. Petitioner was found guilty of the charges at the conclusion of a tier III disciplinary hearing. On administrative appeal, the charge of interfering with an employee was dismissed, but the remainder of the determination was upheld with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Telford v Fischer, 67 AD3d 1109, 1110 [2009]; Matter of Dixon v Brown, 62 AD3d 1223, 1224 [2009], lv denied 13 NY3d 704 [2009]). Petitioner's challenge to the misbehavior report as well as his other contentions have not been preserved for our review.

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

20120524

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