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In re Guillory

Supreme Court of New York, Third Department

October 31, 2013

In the Matter of PATRICK GUILLORY, Appellant,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 18, 2013

Patrick Guillory, Attica, appellant pro se.

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

Before: Rose, J.P., Spain, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cerio, J.), entered March 5, 2013 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with smuggling and possessing an article where its use or possession is prohibited after a pat frisk revealed tobacco hidden in his shoe. Following a tier III disciplinary hearing, petitioner was found guilty as charged and the determination was affirmed upon administrative review with a reduced penalty. Petitioner commenced this CPLR article 78 proceeding challenging the determination and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

Initially, inasmuch as the petition fails to raise a question of substantial evidence, we reject petitioner's contention that Supreme Court erred in not transferring the proceeding in the first instance (see Matter of Taylor v Fischer, 80 A.D.3d 1037, 1037 [2011]). We also reject petitioner's contention that he was denied video footage from the area in which he was searched, as there is no evidence that such footage ever existed (see Matter of Barnes v Fischer, 93 A.D.3d 967, 968 [2012]). Furthermore, we find that the misbehavior report provided adequate notice of the charges to allow petitioner to prepare an adequate defense (see Matter of Toro v Fischer, 104 A.D.3d 1036, 1037 [2013]). Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 A.D.3d 1344, 1345 [2013], lv denied ___ N.Y.3d ___ [Sept. 12, 2013]).

Rose, J.P., Spain, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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