| Matter of Ortiz v Fischer |
| 2012 NY Slip Op 00074 [91 AD3d 1006] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Enrique Ortiz, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 ofCorrections and Community Supervision which found petitioner guilty of violating a prisondisciplinary rule.
During a search of petitioner's cell, disbursement forms containing gang-related insignia andan article about a gang were recovered from petitioner's cell. As a result, he was charged in amisbehavior report with possessing gang-related materials. Following a tier III disciplinaryhearing, petitioner was found guilty of the charge and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the documentary evidence and testimonyadduced at the hearing, including petitioner's admission to possessing the items in question andthe testimony of the correction officials trained in identifying gang-related material, providesubstantial evidence supporting the determination of guilt (see Matter of Moore v Fischer, 76 AD3d 737, 737 [2010]; Matter of Wheeler-Whichard v Fischer,69 AD3d 1286, 1286 [2010]). Petitioner's assertion that the symbols on the disbursementforms were his personal mark and that the misbehavior report was retaliatory in nature presenteda credibility issue for the [*2]Hearing Officer to resolve (see Matter of Smith v Fischer, 87AD3d 1198, 1199 [2011]; Matter ofHarvey v Bradt, 81 AD3d 1003, 1003-1004 [2011]). Moreover, petitioner's claim that hewas denied adequate employee assistance because he was not provided copies of thedisbursement forms and article is unavailing given that he was provided an opportunity to reviewthese documents at the hearing, which he declined, and he has not demonstrated any prejudice(see Matter of Cornwall v Fischer,73 AD3d 1367, 1368 [2010]; Matter of Liner v Fischer, 56 AD3d 1088, 1088 [2008], lvdenied 12 NY3d 703 [2009]). His challenge to the sufficiency of the misbehavior report islikewise unavailing as it contained enough detailed and specific information to allow petitionerto prepare an adequate defense (seeMatter of Rios v Fischer, 59 AD3d 797, 797 [2009]; Matter of Maya v Goord,272 AD2d 724, 725 [2000], lv denied 96 NY2d 704 [2001]). Petitioner's remainingcontentions are either unpreserved for our review or are lacking in merit.
Peters, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.