| Matter of Triplett v Fischer |
| 2008 NY Slip Op 06759 [54 AD3d 1075] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Omar Triplett, Petitioner, v Brian S. Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
After petitioner was observed throwing fecal matter from his cell, he was charged in amisbehavior report with committing an unhygienic act. At the conclusion of the ensuing tier IIIdisciplinary hearing, petitioner was found guilty as charged. That determination was affirmedwith a modified penalty, prompting petitioner to commence this CPLR article 78 proceedingseeking annulment.
We confirm. Substantial evidence consisting of the misbehavior report and testimonyadduced at the hearing supports the determination of guilt (see Matter of Rodriguez v Selsky, 50 AD3d 1337, 1337 [2008]).Petitioner's assertion that his mental health was not considered is belied by the record, whichreveals that the Hearing Officer took confidential testimony about this matter from arepresentative from the mental health unit (see Matter of Sheils v Goord, 16 AD3d 866, 867 [2005]). Theremaining contentions advanced by petitioner, including his claims that the misbehavior reportwas inadequate and he was denied the right to present witness [*2]testimony, have been examined and, to the extent preserved, areunavailing.
Mercure, J.P., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.