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In re Gressler

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of CHARLES J. GRESSLER, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: June 6, 2013

Charles J. Gressler, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Spain and Garry, 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 certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found a folded can lid located in petitioner's large locker. As a result, he was charged in a misbehavior report with possessing a weapon and possessing an authorized item in an unauthorized area. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Petitioner contends that he was improperly denied documentary evidence, consisting of a photocopy of the subject weapon as well as a report prepared by a correction sergeant, in violation of his due process rights. However, a review of the record, including the hearing transcript, discloses that petitioner never requested these documents or raised this claim and it has, therefore, not been preserved for our review (see Matter of Kalwasinski v Fischer, 87 A.D.3d 1207, 1208 [2011]; Matter of Hawkins v Fischer, 72 A.D.3d 1378, 1379 [2010]). To the extent that this claim has a bearing on the evidentiary support for the determination, as petitioner contends, we note that the misbehavior report and related documentation, together with the testimony of the correction officer who prepared the report describing the item and the specific visible location in which it was found, provide substantial evidence supporting the determination of guilt (see Matter of Vassell v Goord, 26 A.D.3d 547, 547 [2006]; Matter of Diaz v Goord, 26 A.D.3d 561, 562 [2006]). Therefore, we find no reason to disturb it.

Peters, P.J., Lahtinen, Spain and Garry, JJ., concur.

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


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