| Matter of Quezada v Fischer |
| 2011 NY Slip Op 05382 [85 AD3d 1462] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jose Quezada, 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 found petitionerguilty of violating a prison disciplinary rule.
During a search of petitioner's cell, an ice pick-type instrument was found secreted in a greenknit hat. As a result, petitioner was charged in a misbehavior report with possessing a weapon.He was found guilty of the charge following a tier III disciplinary hearing and the determinationwas later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officersinvolved in the search, provide substantial evidence supporting the determination of guilt (see Matter of Fuentes v Fischer, 56AD3d 919, 920 [2008]; Matter ofFews v Goord, 54 AD3d 1073, 1074 [2008]). Although petitioner maintained that theweapon had been planted in his cell in retaliation for past grievances and a lawsuit filed by himagainst certain officers, his testimony, and that of the inmate witnesses he called to attempt tocorroborate his story, presented a credibility issue for the Hearing Officer to resolve (see Matter of McLean v Fischer, 63AD3d 1468, 1469 [2009]; Matter ofWilson v Goord, 47 AD3d 1102, 1103 [2008]). Contrary to petitioner's claim, themisbehavior report provided sufficient notice of the charge as it set forth the date, time andlocation of the incident as well as the rule violation and enough details of the misconduct toafford petitioner an opportunity to prepare a meaningful defense (see 7 NYCRR [*2]251-3.1 [c]; Matter of Vines v Goord, 19 AD3d 951, 952-953 [2005];Matter of Quintana v Selsky, 268 AD2d 624, 625 [2000]). Furthermore, upon reviewingthe record, we reject petitioner's claim that the Hearing Officer was biased or that thedetermination at issue flowed from any alleged bias (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lvdenied 13 NY3d 709 [2009]; Matterof Yancey v Conway, 46 AD3d 1042 [2007]). Petitioner's remaining contentions, to theextent that they have been preserved for our review, have been considered and are lacking inmerit.
Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.