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In the Matter of David Douglas Sr v. Brian Fischer

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


March 7, 2013

IN THE MATTER OF DAVID DOUGLAS SR., PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: January 24, 2013

Before: Mercure, J.P., Rose, Stein 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.

Following the receipt of a threatening letter purportedly sent to the Governor by another inmate, investigators tested the envelope flap and found petitioner's DNA. Petitioner was accused of violating various prison disciplinary rules as a result and, after a tier III disciplinary hearing, was found guilty of impersonation, violating facility correspondence procedures and making threats. His administrative appeal was unsuccessful, and this CPLR article 78 proceeding ensued.

The misbehavior report, testing documentation and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Cruz v Bezio, 79 AD3d 1509, 1509 [2010]; Matter of Devaughn v Bezio, 75 AD3d 673, 673-674 [2010]). Contrary to petitioner's further contention, written documents and the testimony of an investigator from the Inspector General's office detailed the tests performed on the envelope and letter, and any further testimony regarding them was properly denied as redundant and/or irrelevant (see Matter of Antinuche v Goord, 16 AD3d 743, 744 [2005]). His remaining arguments have been considered and found to be wanting in merit.

Mercure, J.P., Rose, Stein and Garry, 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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