| Matter of Moore v Fischer |
| 2010 NY Slip Op 06340 [76 AD3d 737] |
| August 5, 2010 |
| Appellate Division, Third Department |
| In the Matter of Terry A. Moore, 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 certain prison disciplinary rules.
Based upon confidential information received by correction officials that petitioner wasproviding legal assistance to other inmates, petitioner's cell was searched and handwritten legalmaterials—the content of which matched the content of legal materials confiscated fromanother inmate—were recovered. A book containing an inscription with a gang-relatedinsignia was also found. As a result, petitioner was charged in one misbehavior report withproviding unauthorized legal assistance and in another with possessing gang-related materials. Atier III disciplinary hearing was subsequently conducted with respect to the charges contained inboth misbehavior reports. Petitioner was found guilty of both charges and the determination waslater affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior reports, testimony adducedat the hearing and documentary evidence, supports the determination finding petitioner guilty ofproviding unauthorized legal assistance and possessing gang-related materials (see Matter of Belot v Selsky, 56 AD3d911, 912 [2008]; Matter of Dozierv Selsky, 54 AD3d 1074, 1075 [2008]). Although petitioner maintained that the legalpapers found in his possession [*2]pertained to a prior incidentfor which he had been disciplined and that the inscription in the book that was recovered was apassage written by his father having no gang-related meaning, such assertions presented acredibility issue for the Hearing Officer to resolve (see Matter of Perez v Fischer, 69 AD3d 1279, 1279-1280 [2010];Matter of Murray v Selsky, 58 AD3d 975, 975-976 [2009]). Petitioner further contendsthat he was not provided notice of the rule prohibiting inmates from possessing gang-relatedmaterials and that the finding of guilt on this charge must be annulled. This contention, however,is belied by the testimony of correction officials that the rule in question—not merely amemo relating to sanctions for a violation thereof, as alleged by petitioner—was posted inan area clearly visible to all inmates in accordance with regulatory requirements (see Matterof Yant v Filion, 268 AD2d 923, 924 [2000]; see generally Matter of Cornwall v Fischer, 73 AD3d 1367, 1368[2010]). Contrary to petitioner's claim, he was not improperly denied the right to call the generalbusiness instructor as a witness at the hearing inasmuch as his testimony would have beenirrelevant (see Matter of Lozada vCook, 67 AD3d 1232, 1233 [2009], lv denied 14 NY3d 706 [2010]; Matter of Gimenez v Artus, 63 AD3d1461, 1462 [2009]). Petitioner's remaining contentions, including his claim that he wasdenied a fair hearing, have been reviewed and found to be without merit.
Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.