Matter of Gonzalez v Fischer

2008 NY Slip Op 06403

Decided on July 24, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 24, 2008
503589



Calendar Date: June 11, 2008
Before: Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ.


Romualdo Gonzalez, Auburn, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter
H. Schiff of counsel), for respondent.


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.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of possession of a weapon. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and related documentation, which established that a search of petitioner's cell recovered a round metal weapon that had been sharpened to a point and had a masking tape and cellophane handle (see Matter of Moxley v Selsky, 45 AD3d 1084, 1084 [2007]). Petitioner's claim of inadequate employee assistance is neither substantiated in the record nor is there any indication that he was prejudiced by any alleged deficiencies (see Matter of Boley v Selsky, 50 AD3d 1411, 1412 [2008]). We have examined petitioner's remaining contentions, including his claim that he was denied the right to present witness testimony, and find them to be unpersuasive.[*2]

Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ., concur.

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