| Matter of Gomez v Fischer |
| 2010 NY Slip Op 00747 [70 AD3d 1076] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Vincent Gomez, Petitioner, v Brian C. Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
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 which foundpetitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found legal documents belonging to35 other inmates as well as other papers of a legal nature. As a result, petitioner was charged in amisbehavior report with engaging in an unauthorized exchange of personally owned property,providing legal assistance without authorization, possessing contraband and smuggling.Following a tier III disciplinary hearing, he was found guilty of possessing contraband andsmuggling. The determination was upheld on administrative appeal and this CPLR article 78proceeding ensued.
We confirm. The misbehavior report, together with petitioner's testimony in which headmitted to possessing legal materials belonging to other inmates as well as to copying legaldecisions from the law library and taking them back to his cell, provide substantial evidencesupporting the determination of guilt (see Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 [2007]; Matter of Holmes v Brown, 43 AD3d1234, 1235 [2007], lv denied 9 NY3d 815 [2007]). Contrary to petitioner'scontention, the misbehavior report was sufficiently detailed to give [*2]petitioner notice of the charges in order to enable him to prepare adefense (see Matter of Arnold vFischer, 60 AD3d 1177, 1177 [2009]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872 [2006]).Furthermore, the record does not reveal that the Hearing Officer was biased or that thedetermination at issue flowed from any alleged bias (see Matter of Linares v Fischer, 59 AD3d 761 [2009], lvdenied 12 NY3d 709 [2009]).
Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.