Opinion
2012-04-19
In the Matter of Demitri JONES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Demitri Jones, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Demitri Jones, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, MALONE JR., STEIN and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
A correction officer witnessed petitioner cut another inmate and cause a laceration to the inmate's face. As a result, petitioner was charged in a misbehavior report with assaulting the inmate. Following a tier III disciplinary hearing, petitioner was found guilty and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author and the related documentation, provide substantial evidence supporting the determination of guilt ( see Matter of Jones v. Fischer, 69 A.D.3d 1065, 1065–1066, 893 N.Y.S.2d 361 [2010], lv. denied 16 N.Y.3d 707, 2011 WL 1120032 [2011]; Matter of Vassell v. Goord, 26 A.D.3d 547, 547, 807 N.Y.S.2d 737 [2006] ). Although petitioner asserts that the misbehavior report was not properly endorsed, there is nothing in the record to indicate that the officer who detained him witnessed the incident or acquired personal knowledge of the facts. In view of this, the officer's endorsement was not necessary, and petitioner has failed to demonstrate that he was prejudiced by its omission ( see 7 NYCRR 251–3.1[b]; Matter of Page v. Fischer, 64 A.D.3d 1067, 1068, 883 N.Y.S.2d 626 [2009] ). Likewise, the record discloses that valid extensions were obtained to begin the hearing ( see 7 NYCRR 251–5.1[a] ) and that it was commenced and completed within the authorized time period ( see Matter of Cepeda v. Goord, 39 A.D.3d 640, 641, 834 N.Y.S.2d 265 [2007]; Matter of Berry v. Goord, 13 A.D.3d 947, 787 N.Y.S.2d 439 [2004] ). Finally, petitioner's claim of Hearing Officer bias has not been preserved for our review due to his failure to raise it in his administrative appeal ( see Matter of Britt v. Fischer, 54 A.D.3d 1087, 864 N.Y.S.2d 571 [2008]; Matter of Branch v. Goord, 4 A.D.3d 699, 700, 772 N.Y.S.2d 426 [2004] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.