| Matter of Hayes v Fischer |
| 2010 NY Slip Op 08408 [78 AD3d 1396] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eddie Hayes, 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 Supreme Court,entered in Albany County) to review a determination of respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
After several pieces of a broken feed-up tray were found outside the exercise pen connected topetitioner's prison cell, a search of the proximate cells was ordered. Immediately thereafter, twoweapons made of melted and sharpened plastic were found outside petitioner's prison cell, and thesubsequent search of his cell revealed a broken piece of a plastic feed-up tray and burn marks on theunderside of his desk. An examination of a videotape taken at the time of the incident also revealedthat, just prior to the search, petitioner appeared to place an object on the floor and kick it out of hiscell. As a result, petitioner was charged in a misbehavior report with possession of a weapon,destruction of state property and arson. Following a tier III disciplinary hearing, petitioner was foundguilty of all charges. On administrative appeal, the arson charge was dismissed for lack of evidence withno change in the penalty assessed. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, testimony of the correction officers involved with theinvestigation, videotape of petitioner's actions, supporting documentation and pictures of the weaponsfound provide substantial evidence to support the finding of guilt (see Matter of Robertson v Fischer, 70 AD3d 1081, 1081 [2010];Matter of Vargas v Selsky, 69 [*2]AD3d 1078, 1078 [2010]).Petitioner's contention that he was improperly denied evidence in the form of additional videotapes,certain log book entries and an inventory checklist of his cell is unpersuasive, as the recorddemonstrates that those materials did not exist (see Matter of West v Bezio, 63 AD3d 1464, 1465 [2009]; Matterof Chavis v Goord, 58 AD3d 954, 955 [2009]). Finally, our review of the record demonstratesthat the determination resulted from the evidence presented against petitioner, rather than any bias onthe part of the Hearing Officer (see Matter ofKey v Fischer, 72 AD3d 1365, 1366 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1086 [2010]). Petitioner'sremaining contentions have been examined and determined to be unpreserved or without merit.
Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.