| Matter of Abreu v Fischer |
| 2011 NY Slip Op 06616 [87 AD3d 1241] |
| September 29, 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 (Frank Brady of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging twodeterminations—one rendered March 3, 2010 and the other March 9, 2010—findinghim guilty of violating various disciplinary rules. Initially, we find, and the Attorney Generalconcedes, that because petitioner raised an issue during the second hearing regarding his mentalhealth status, it was error not to receive testimony concerning petitioner's mental condition(see 7 NYCRR 254.6 [c]). Therefore, the March 9, 2010 determination finding petitionerguilty of lewd conduct and refusing a direct order must be reversed and expunged frompetitioner's institutional record.
Turning to the March 3, 2010 determination, the misbehavior report and petitioner'stestimony that he was banging on the plexiglas cell shield with a bucket provide substantialevidence to support the determination finding petitioner guilty of creating a disturbance (see Matter of Gentle v Bezio, 78 AD3d1398, 1399 [2010]; Matter ofBarham v Goord, 42 AD3d 607, 608 [2007]). We reject petitioner's contention that thedetermination of guilt resulted from [*2]alleged hearing officerbias rather than the evidence presented (see Matter of Black v Goord, 12 AD3d 1005, 1006 [2004]). Wehave reviewed petitioner's remaining contentions, including that he was denied adequateassistance, and find them to be without merit.
Mercure, J.P., Lahtinen, Malone Jr., Garry and Egan Jr., JJ., concur. Adjudged that theMarch 9, 2010 determination is annulled, without costs, petition granted to that extent andrespondent Commissioner of Correctional Services is directed to expunge all references theretofrom petitioner's institutional record. Adjudged that the March 3, 2010 determination isconfirmed, without costs, and petition dismissed to that extent.