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In the Matter of Carlos Rodriguez v. Brian Fischer

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


December 13, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Mercure, J.P., 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 a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

After a correction sergeant received confidential information that a weapon could be found in the cell occupied by petitioner, a search was conducted and a sharpened toothbrush was found within petitioner's locker in an eyeglass case. Petitioner was accordingly charged in a misbehavior report with possessing a weapon and possessing an altered item. He was found guilty as charged following a tier III disciplinary hearing, and a penalty of six months in the special housing unit with corresponding loss of commissary packages and telephones, as well as six months loss of good time, was imposed. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence supports the determination of guilt in the form of the misbehavior report and related documentation, as well as the testimony of petitioner's cellmate and the correction officer who searched the cell (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1056 [2012]). Although petitioner maintained that the weapon was not his and had been planted by correction officials seeking retribution against him, that claim presented a credibility issue for the Hearing Officer to resolve (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]). The misbehavior report contained sufficient notice of the charges against petitioner and enabled him to present a defense; he has failed to demonstrate that he was prejudiced by the alleged addition of the rule violation number and rule description to the report by another staff member prior to its service upon him (see id.; Matter of Williams v Goord, 270 AD2d 744, 744-745 [2000]). Petitioner's remaining claims, to the extent they are properly preserved for our review, have been examined and found to be without merit.

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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