| Matter of Gloss v Fischer |
| 2009 NY Slip Op 06617 [65 AD3d 1430] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard Gloss, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with forgery and providing false informationafter he supplied correction officials with, among other things, an ASAT certificate from anothercorrectional facility that had been falsified. Following a tier III disciplinary hearing, petitionerwas found guilty of the charges. The determination was later affirmed on administrative appeal,resulting in this CPLR article 78 proceeding.
We confirm. Contrary to petitioner's claim, the determination finding him guilty of thecharges is not inconsistent. The misbehavior report, together with the documentary evidence andtestimony adduced at the hearing, provide substantial evidence supporting the finding thatpetitioner not only supplied a forged ASAT certificate, but that he provided false information indoing so (see Matter of Gonzalez vGoord, 24 AD3d 836, 836 [2005]; Matter of Torres v Goord, 267 AD2d 732,733 [1999]). Although petitioner asserts that he was improperly denied an assistant to help himprepare for the hearing, he was not entitled to one inasmuch as he was not confined following thepreparation of the misbehavior report and did not satisfy any of the other [*2]criteria set forth in 7 NYCRR 251-4.1 (a) (see Matter of Alston v Goord, 25AD3d 852, 853 [2006]; Matter ofMiller v Goord, 2 AD3d 928, 929 [2003]). Petitioner has not preserved his claim that hewas denied a fair hearing given his failure to raise it either at the hearing or in his administrativeappeal (see Matter of Peoples vSelsky, 33 AD3d 1179, 1180 [2006]).
Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.