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In the Matter of Ronald Alston v. Brian Fischer

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


March 7, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: January 24, 2013

Before: Mercure, J.P., Lahtinen, Stein 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 which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting him from engaging in a sex act with another inmate. His subsequent administrative appeal was unsuccessful, and this CPLR article 78 proceeding ensued. The misbehavior report, together with the testimony of its author and the confidential testimony, provide substantial evidence to support the determination of guilt (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]; Matter of Parker v Fischer, 70 AD3d 1086, 1087 [2010]). Contrary to petitioner's argument, the fact that he was found not guilty at a separate disciplinary hearing of assaulting the other inmate during a different incident has no preclusive effect upon the determination (see Matter of Calcaterra v Fischer, 73 AD3d 1370, 1371 [2010]). We have considered petitioner's remaining contentions, including his assertion that the Hearing Officer was biased against him and improperly deprived him of the opportunity to present relevant evidence and testimony, and find them to be without merit.

Mercure, J.P., Lahtinen, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130307

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