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In re Oliver

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of JAMES OLIVER, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

James Oliver, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Before: Stein, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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.

During a search of petitioner's cell, a correction officer found what appeared to be a partially-smoked marihuana cigarette. The item was recovered and tested, but the results were negative for marihuana. Nevertheless, petitioner was charged in a misbehavior report with possessing contraband. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Jamison v State of New York Dept. of Corr. Servs., 98 A.D.3d 1150, 1150 [2012]; Matter of Alache v Fischer, 91 A.D.3d 1240, 1241 [2012]). Based upon prior experience, the correction sergeant who endorsed the misbehavior report identified the substance as synthetic marihuana also known as "spice, " which inmates are not permitted to possess. Notably, the disciplinary rule in question prohibits inmates from possessing "any item unless it has been specifically authorized by the superintendent or designee, the rules of the department or the local rules of the facility" (7 NYCRR 270.2 [B] [14] [xiii]). Although petitioner maintained that he did not possess synthetic marihuana, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Amen v James, 98 A.D.3d 772, 773 [2012]; Matter of Perez v Fischer, 69 A.D.3d 1279, 1279-1280 [2010]). In view of the foregoing, the determination is supported by substantial evidence and we decline to disturb it.

Stein, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

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


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