| Matter of Boyd v Fischer |
| 2010 NY Slip Op 05642 [74 AD3d 1679] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Timothy Boyd, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following an investigation, petitioner, a prison inmate, was served with a misbehavior reportcharging him with conspiring to introduce drugs into the facility and making threats. A tier IIIdisciplinary hearing was held, after which petitioner was found guilty of both charges. Thatdetermination was upheld on administrative appeal, and petitioner commenced this CPLR article78 proceeding to challenge that determination.
We confirm. The misbehavior report and testimony, both open and confidential, providesubstantial evidence to support the determination of guilt (see Matter of Smiton v New York State Dept. of Correctional Servs.,70 AD3d 1148, 1149 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1085-1086 [2010]).The fact that petitioner was not provided with the name of his alleged co-conspirator did notrender the determination defective, inasmuch as the identity was kept secret due to concerns forinstitutional safety (see Matter of Rossv Selsky, 49 AD3d 1065, 1065-1066 [2008]).
Turning to petitioner's procedural contentions, we find that the disciplinary hearing wastimely, inasmuch as the misbehavior report was authored on May 7, 2009 and the hearing [*2]commenced on May 13, 2009 (see 7 NYCRR 251-5.1 [a];Matter of Agosto v Selsky, 39AD3d 1106, 1106 [2007]). The contentions that the Hearing Officer was biased and that heimpermissibly refused to call certain witnesses are unpreserved for our review by petitioner'sfailure to raise them in his administrative appeal (see Matter of Vargas v Bezio, 69 AD3d 1075 [2010]; Matter of Perez v Fischer, 62 AD3d1104, 1105 [2009]). Petitioner's remaining arguments have been examined and determinedto be without merit.
Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.