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Dalrymple v. Fischer

Appellate Division of the Supreme Court of New York, Third Department
Aug 6, 2009
65 A.D.3d 725 (N.Y. App. Div. 2009)

Opinion

No. 506094.

August 6, 2009.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Gejuane Dalrymple, Attica, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur.


Following a search of petitioner's cell during which correction officers discovered three plastic dice, 96 postage stamps and four tablets of prescription ibuprofen, he was served with a misbehavior report. A tier III disciplinary proceeding ensued, after which petitioner was found guilty of possessing unauthorized medication, unauthorized property and gambling paraphernalia. That determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding. We now confirm.

Petitioner's lone contention is that his determination must be annulled because he was improperly denied the right to be present during the search of his cell pursuant to Department of Correctional Services Directive No. 4910 § V-C-1 ( see Matter of Vines v Goord, 19 AD3d 951, 952; Matter of Holloway v Lacy, 263 AD2d 740, 741). We find petitioner's argument unavailing, inasmuch as the officer who conducted the search of petitioner's cell testified that the door was left open during the search and petitioner, although asked to leave the cell, was not directed to leave the immediate vicinity. Petitioner and another inmate testified to the contrary, presenting an issue of credibility for the Hearing Officer to resolve ( see Matter of Vines v Goord, 19 AD3d at 952; Matter of Smith v Selsky, 294 AD2d 629, 630).

Although this proceeding appears to have been improperly transferred inasmuch as petitioner does not raise an issue of substantial evidence, we shall retain jurisdiction and address the merits of petitioner's claim in the interest of judicial economy ( see Matter of Burgess v Selsky, 50 AD3d 1347, 1348 [2008]).

Adjudged that the determination is confirmed, without costs, and petition dismissed.


Summaries of

Dalrymple v. Fischer

Appellate Division of the Supreme Court of New York, Third Department
Aug 6, 2009
65 A.D.3d 725 (N.Y. App. Div. 2009)
Case details for

Dalrymple v. Fischer

Case Details

Full title:In the Matter of GEJUANE DALRYMPLE, Petitioner, v. BRIAN FISCHER, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Aug 6, 2009

Citations

65 A.D.3d 725 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 6092
883 N.Y.S.2d 654

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