| Matter of Rodriguez v Fischer |
| 2012 NY Slip Op 08595 [101 AD3d 1294] |
| December 13, 2012 |
| Appellate Division, Third Department |
| In the Matter of Carlos Rodriguez, Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision, 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 ofCorrections and Community Supervision which found petitioner guilty of violating certain prisondisciplinary rules.
After a correction sergeant received confidential information that a weapon could be found inthe cell occupied by petitioner, a search was conducted and a sharpened toothbrush was foundwithin petitioner's locker in an eyeglass case. Petitioner was accordingly charged in amisbehavior report with possessing a weapon and possessing an altered item. He was foundguilty as charged following a tier III disciplinary hearing, and a penalty of six months in thespecial housing unit with corresponding loss of commissary packages and telephones, as well assix months loss of good time, was imposed. The determination was affirmed upon administrativeappeal, and this CPLR article 78 proceeding ensued.
We confirm. Substantial evidence supports the determination of guilt in the form of themisbehavior report and related documentation, as well as the testimony of petitioner's cellmateand the correction officer who searched the cell (see Matter of Horne v Fischer, 98 AD3d 788, [*2]789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1056 [2012]). Althoughpetitioner maintained that the weapon was not his and had been planted by correction officialsseeking retribution against him, that claim presented a credibility issue for the Hearing Officer toresolve (see Matter of Quezada vFischer, 85 AD3d 1462, 1462 [2011]). The misbehavior report contained sufficientnotice of the charges against petitioner and enabled him to present a defense; he has failed todemonstrate that he was prejudiced by the alleged addition of the rule violation number and ruledescription to the report by another staff member prior to its service upon him (see id.;Matter of Williams v Goord, 270 AD2d 744, 744-745 [2000]). Petitioner's remainingclaims, to the extent they are properly preserved for our review, have been examined and foundto be without merit.
Mercure, J.P., Spain, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.