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In the Matter of Terrence Jones v. Brian Fischer

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


December 6, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Peters, P.J., Lahtinen, Kavanagh, McCarthy and Garry, 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.

Petitioner was issued two misbehavior reports on the same day arising out of related incidents charging him with violating prison disciplinary rules regarding disobeying a direct order, harassment, disturbance, threats and interference. Following a combined tier III disciplinary hearing, the Hearing Officer found petitioner guilty of all charges. The determination was upheld on administrative appeal. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 challenging the determination.

Initially, we are not persuaded by petitioner's procedural complaints. The record reflects that the Hearing Officer conducted a fair and impartial hearing and made appropriate evidentiary determinations (see Matter of Dennis v Bezio, 82 AD3d 1398, 1399 [2011]; Matter of Sepe v Goord, 1 AD3d 667, 668 [2003]). The record also reflects that the hearing was conducted within the time frames permitted by appropriate extensions (see Matter of McNeil v Fischer, 95 AD3d 1520, 1521 [2012]; Matter of Martinez v Fischer, 82 AD3d 1380, 1381 [2011]). Furthermore, we are satisfied on this record that petitioner was provided with adequate employee assistance (see Matter of McNeil v Fischer, 95 AD3d at 1521; Matter of Liner v Fischer, 56 AD3d 1088, 1088 [2008], lv denied 12 NY3d 703 [2009]).

Nor are we convinced by petitioner's arguments concerning the sufficiency of the evidence. The testimony of an employee witness, together with the misbehavior reports and to/from reports, provided substantial evidence supporting a finding of petitioner's guilt on each charge (see Matter of Abreu v Fischer, 84 AD3d 1597, 1597 [2011]; Matter of Watson v New York State Dept. of Correctional Servs., 82 AD3d 1435, 1435 [2011]). Petitioner waived the testimony of the officers who authored the misbehavior reports and, therefore, may not now argue that their testimony was improperly omitted (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Rizzuto v Coombe, 225 AD2d 961, 962 [1996]). To the extent not specifically addressed herein, petitioner's remaining arguments have been considered and found to be without merit.

Peters, P.J., Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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