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In re Fero

Supreme Court of New York, Third Department

October 3, 2013

In the Matter of WILLIAM FERO, Petitioner,
v.
ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: July 29, 2013

William Fero, Malone, petitioner pro se.

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

Before: Lahtinen, 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

When a correction officer observed the front of petitioner's prison cell covered by a sheet, she instructed him to remove it. After first resisting, he complied. Later in the day, the same officer again observed petitioner's cell partially covered by the sheet and directed him to remove it. After again resisting, petitioner removed the sheet to reveal himself naked and masturbating. As a result, petitioner received a misbehavior report charging him with lewd conduct, obstructing visibility and refusing a direct order and, following a tier III disciplinary hearing, he was found guilty of all charges. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. Initially, the misbehavior report, supported by the testimony of several correction officers including the report's author, provides substantial evidence to support the determination (see Matter of Fowler v Fischer, 106 A.D.3d 1344, 1345 [2013], lv denied __ N.Y.3d __ [Sept. 12, 2013]; Matter of Torres v Fischer, 106 A.D.3d 1342, 1343 [2013]). Turning to petitioner's procedural contentions, he was not improperly denied the right to call a character witness, as that witness had no knowledge of the incident (see Matter of Rivera v Prack, 97 A.D.3d 879, 880 [2012]; Matter of Flournoy v Bezio, 84 A.D.3d 1636, 1637 [2011]). Nor did the Hearing Officer err in limiting petitioner's questioning of the misbehavior report's author to relevant matters (see Matter of Toliver v Commissioner of Corr. & Community Supervision, 104 A.D.3d 981, 982 [2013]; Matter of Lee v McCoy, 233 A.D.2d 633, 634 [1996]). Finally, a review of the record reveals that the determination resulted from the evidence presented at the hearing, rather than any alleged hearing officer bias (see Matter of Colon v Fischer, 98 A.D.3d 1176, 1117 [2012], lv denied 20 N.Y.3d 857 [2013]; Matter of Rodriguez v Fischer, 96 A.D.3d 1333, 1333 [2012]). Petitioner's remaining contentions are unpreserved for our review.

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

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


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