Triplett v. Fischer

54 A.D.3d 1075, 864 N.Y.S.2d 195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 11, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After petitioner was observed throwing fecal matter from his cell, he was charged in a misbehavior report with committing an unhygienic act. At the conclusion of the ensuing tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed with a modified penalty, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. Substantial evidence consisting of the misbehavior report and testimony adduced at the hearing supports the determination of guilt (see Matter of Rodriguez v Selsky, 50 AD3d 1337, 1337 [2008]). Petitioner’s assertion that his mental health was not considered is belied by the record, which reveals that the Hearing Officer took confidential testimony about this matter from a representative from the mental health unit (see Matter of Sheils v Goord, 16 AD3d 866, 867 [2005]). The remaining contentions advanced by petitioner, including his claims that the misbehavior report was inadequate and he was denied the right to present witness testimony, have been examined and, to the extent preserved, are unavailing.

Mercure, J.P, Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.