| Matter of Mills v Fischer |
| 2011 NY Slip Op 05503 [85 AD3d 1033] |
| June 21, 2011 |
| Appellate Division, Second Department |
| In the Matter of Rasheen Mills, Petitioner, v Brian Fischer,as Commissioner of the New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of Brian Fischer, asCommissioner of the New York State Department of Correctional Services, dated December 24,2008, which adopted the recommendation of a hearing officer dated November 18, 2008, madeafter a tier III disciplinary hearing, finding the petitioner guilty of the charge of possession ofgang related materials.
Adjudged that the determination is confirmed, without costs or disbursements, the petition isdenied, and the proceeding is dismissed on the merits.
Contrary to the petitioner's contention, the misbehavior report, the hearing testimony, andother documents presented at the hearing provided substantial evidence to support the hearingofficer's determination that he was guilty of the charge brought against him (see Matter ofFoster v Coughlin, 76 NY2d 964, 966 [1990]; People ex rel. Vega v Smith, 66 NY2d130, 140 [1985]; Matter of Reyes vLeclaire, 49 AD3d 884 [2008]). Any credibility issues were resolved by the hearingofficer, and we find no basis upon which to disturb the hearing officer's determination (seeMatter of Perez v Wilmot, 67 NY2d 615, 617 [1986]; Matter of Armstrong v Phillips, 44 AD3d 759 [2007]).
The petitioner's contention that he was unable to prepare an adequate defense is withoutmerit. The misbehavior report provided sufficient particulars to allow the petitioner to make aneffective response to the charge against him and, consequently, he was not denied due process(see Matter of Lozada v Selsky, 306 AD2d 413 [2003]). Mastro, J.P., Florio, Belen andChambers, JJ., concur.