| Matter of Abreu v Fischer |
| 2011 NY Slip Op 03315 [83 AD3d 1348] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Carlos Abreu, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was observed by a correction officer lying on his bed naked,masturbating with the lights on and was given a direct order to stop. Shortly thereafter, the officeragain passed petitioner's cell on her rounds and he was standing at his gate masturbating. As aresult, petitioner was charged in a misbehavior report with lewd conduct and refusing a directorder. Following a tier III disciplinary hearing, petitioner was found guilty of both charges andthe determination was affirmed on administrative appeal. Thereafter, petitioner commenced thisCPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who observedpetitioner's behavior and the videotape of the incident provide substantial evidence to support thedetermination of guilt (see Matter ofWahhab v Fischer, 77 AD3d 996, 997 [2010]; Matter of Callender v Selsky, 41 AD3d 1065, 1065-1066 [2007]).Petitioner further contends that he was improperly denied a copy of certain log book entries.However, inasmuch as he conceded that the correction officer who authored the misbehaviorreport was present at the time of the [*2]incident, suchdocumentation was irrelevant to his defense (see Matter of Walker v Fischer, 71 AD3d 1309, 1310 [2010],appeal dismissed 14 NY3d 912 [2010]; Matter of McIver v Goord, 37 AD3d 943, 945 [2007]). Theremainder of petitioner's procedural contentions are unpreserved due to his failure to raise themat the hearing (see Matter of Hernandezv Bezio, 76 AD3d 1148, 1148-1149 [2010]; Matter of Joseph v Fischer, 67 AD3d 1103, 1104 [2009]).
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.