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In re Brooks

Supreme Court of New York, Third Department

October 3, 2013

In the Matter of DAVID BROOKS, Appellant,
v.
DAVID UNGER, as Superintendent of Wyoming Correctional Facility, et al., Respondents.

Calendar Date: July 29, 2013

David Brooks, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany Peter H. Schiff of counsel), for respondents.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Connolly, J.), entered January 18, 2012 in Albany 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.

Petitioner, a prison inmate, was charged in a misbehavior report with disobeying a direct order, possession of stolen property and possession of authorized property in an unauthorized area. The charges stemmed from petitioner's possession in his cube of a keyboard and adaptor belonging to the therapeutic music program despite being informed that the personal use of such instruments by music therapy participants such as petitioner was no longer permitted. Petitioner was found guilty following a tier III disciplinary hearing and, after an unsuccessful administrative appeal, commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued. [1]

Contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Branch v Goord, 4 A.D.3d 699, 700 [2004]). Furthermore, although the Hearing Officer was aware of the incident, there is no indication that he was involved in or investigated the incident so as to require his recusal (see Matter of Turner v Fischer, 100 A.D.3d 1310, 1310 [2012]). We have reviewed petitioner's remaining contentions regarding the hearing transcript and find them to be either without merit or unpreserved for our review.

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

ORDERED that the judgment is affirmed, without costs.


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