| Matter of Warren v Fischer |
| 2009 NY Slip Op 05228 [63 AD3d 1466] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Vincent Warren, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
During the time that petitioner was confined to an observation cell, the cell was searched anda correction officer recovered a yellow piece of plastic sharpened to a point on one end, believedto have been made from a toothbrush handle, and a piece of plastic wrap that smelled of feces.As a result, petitioner was charged in a misbehavior report with smuggling and possessing aweapon. Following a tier III disciplinary hearing, he was found guilty of the charges and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho authored it, provide substantial evidence supporting the determination of guilt (see Matter of Mastropietro v New YorkState Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d711 [2008]; Matter of LaFontant vFischer, 51 AD3d 1347, 1347 [2008]). We are unpersuaded by petitioner's claim that hewas improperly denied certain witnesses given that their testimony would have been eitherirrelevant or redundant under the circumstances presented (see Matter of Rizzuto v Goord, 36 AD3d 1124, 1125 [2007]; Matter of Pettus v West, 28 AD3d907, 908 [2006]). In addition, petitioner's assertion that he was improperly denied anemployee assistant is belied by the record inasmuch as the correction officer who served himwith the [*2]assistance form testified that petitioner failed tochoose one (see Matter of Martinez vSelsky, 53 AD3d 989 [2008]). Finally, petitioner's claim of hearing officer bias isunsubstantiated by the record and there is no indication that the determination of guilt flowedfrom any alleged bias (see Matter ofYancey v Conway, 46 AD3d 1042 [2007]; Matter of Lewis v Goord, 43 AD3d 1259 [2007], lvdismissed 9 NY3d 1030 [2008]).
Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.