| Matter of Cornwall v Fischer |
| 2010 NY Slip Op 04307 [73 AD3d 1367] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Shawn Cornwall, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary ruleprohibiting gang-related activity. The charge arose from a search of another inmate's prison cellthat disclosed several gang-related documents authored by petitioner. After a tier III disciplinaryhearing, petitioner was found guilty as charged. That determination was affirmed uponadministrative appeal, and petitioner commenced this CPLR article 78 proceeding seekingannulment.
We confirm. Petitioner's admission that he wrote the documents at issue, the documentsthemselves, the misbehavior report and the hearing testimony provide substantial evidencesupporting the determination of guilt (see Matter of Cochran v Bezio, 70 AD3d 1161, 1162 [2010]; Matter of Sweat v Fischer, 52 AD3d1142, 1142 [2008]). We reject petitioner's claim that he lacked the requisite notice of therule prohibiting gang-related activity, as he had received a copy of it previously (see Matterof Tumminia v Goord, 294 AD2d 727, 727 [2002], lv denied 99 NY2d 502 [2002]).Further, even if petitioner is correct in his claim that his employee [*2]assistant failed to explain the nature of the charge to him, it wasexplained by the Hearing Officer and there is no indication that the allegedly inadequateassistance prejudiced his defense (seeMatter of Moss v Goord, 36 AD3d 977, 978 [2007]; Matter of Salaam v Goord, 8 AD3d 776, 777 [2004]). Petitioner'sremaining arguments have been examined and, to the extent they are properly before us, found tobe meritless.
Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.