| Matter of Parra v Fischer |
| 2010 NY Slip Op 06328 [76 AD3d 724] |
| August 5, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edwin Parra, 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 Albany County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
While two correction officers were searching petitioner's cell, one of them observedpackaging tape around the toilet and, upon further inspection, noticed that toilet paper wasstuffed between the toilet and the wall which was covered with toothpaste and paint. The officerremoved the paper and, with the assistance of the other officer, recovered an eight-inchplexiglass shank from a hole in the wall next to the toilet. The officers also found what appearedto be gang-related material in petitioner's cell. Petitioner was subsequently charged in amisbehavior report with possessing a weapon and possessing gang-related material. Following atier III disciplinary hearing, he was found guilty only of the charge of possessing a weapon. Thedetermination was later affirmed on administrative appeal and this CPLR article 78 proceedingensued.
Contrary to petitioner's claim, inasmuch as the petition does raise an issue of substantialevidence, the proceeding was properly transferred to this Court for review (see Matter of Abreu v Bezio, 71 AD3d1341, 1341 [2010]; Matter ofHamilton v Selsky, 13 AD3d 844, 845 [2004], lv denied 5 NY3d 704 [2005];see also CPLR 7804 [g]). Turning to the merits, the misbehavior [*2]report, related documentation and testimony adduced at the hearingprovide substantial evidence supporting the determination finding petitioner guilty of possessinga weapon (see Matter of Pedraza vFischer, 65 AD3d 1434, 1435 [2009]; Matter of Dexter v Goord, 43 AD3d 516, 517 [2007]). Althoughpetitioner denied that the weapon was his and asserted that the misbehavior report wasfabricated, this presented a credibility issue for the Hearing Officer to resolve (see Matter of McLean v Fischer, 63AD3d 1468, 1469 [2009]). Furthermore, the record does not substantiate petitioner'sassertion that the Hearing Officer was biased or that the determination flowed from any allegedbias (see Matter of Thompson vVotraw, 65 AD3d 1403, 1405 [2009]; Matter of Warren v Fischer, 63 AD3d 1466, 1467 [2009]).Petitioner's remaining contentions have not been preserved for our review.
Cardona, P.J., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.