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In the Matter of Willis L. v. State of New York et al

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


January 24, 2013

IN THE MATTER OF WILLIS L. WHITE, APPELLANT,
v.
STATE OF NEW YORK ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Lawliss, J.), entered March 2, 2012 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND ORDER

Calendar Date: December 17, 2012

Before: Peters, P.J., Mercure, Lahtinen, Spain and McCarthy, JJ.

Petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item after a search of his cell uncovered a sharpened half of a pair of tweezers with clear tape for a handle and an altered hot plate. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and a penalty was imposed. The determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and this appeal ensued.

We affirm. The alleged errors in the prehearing assistance provided to petitioner were remedied by the Hearing Officer (see Matter of Senior v Fischer, 98 AD3d 783, 784 [2012]; Matter of Martino v Goord, 38 AD3d 958, 959 [2007]). Further, petitioner was properly precluded from introducing physical and documentary evidence that he possessed a complete set of tweezers, as such evidence would have been redundant to petitioner's testimony, which was accepted by the Hearing Officer as true (see Matter of Darshan v Bango, 83 AD3d 1302, 1302 [2011]). Petitioner's remaining claims, to the extent that they have been preserved for our review, are without merit.

Peters, P.J., Mercure, Lahtinen, Spain and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130124

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