| Matter of Davis v Fischer |
| 2010 NY Slip Op 08427 [78 AD3d 1416] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jack Davis, Petitioner, v Brian Fischer, as Commissionerof Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
During an investigation into a prison inmate's injury and possible involvement in a fight, petitionerwas found to have a swollen lip and a cut to the back of his head. Petitioner thereafter was served witha misbehavior report charging him with assault, fighting, violent conduct and failure to report an injury.Following a tier III disciplinary hearing, he was found guilty only of the charge of failure to report aninjury, and that determination was affirmed on administrative appeal. Petitioner then commenced thisCPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who authored the reportand pictures of petitioner's injuries provide substantial evidence to support the determination of guilt (see Matter of Butler v Fischer, 67 AD3d1112 [2009]). Contrary to petitioner's contention, the misbehavior report contained sufficientdetail to provide him adequate notice of the charges and allow him to prepare a defense (see Matter of Edwards v Leclaire, 71 AD3d1199 [2010]; Matter of Perretti v Fischer, 58 AD3d 999, 1000-1001 [2009], lvdenied 12 [*2]NY3d 709 [2009]). Finally, where the misbehaviorreport contained charges that constituted both tier III and tier II infractions, the hearing was properlydesignated a tier III disciplinary hearing (seeMatter of Williams v Goord, 23 AD3d 872, 872-873 [2005]).
Petitioner's remaining arguments have been examined and found to be either unpreserved orwithout merit.
Cardona, P.J., Mercure, Peters, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.