IN RE: IVAN GILBERT (2026)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: IVAN GILBERT, PETITIONER, v. DANIEL F. MARTUSCELLO, III, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

189 Decided: March 27, 2026

PRESENT: CURRAN, J.P., MONTOUR, SMITH, OGDEN, AND DELCONTE, JJ.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (WILLIAM M. HAYES OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier III disciplinary hearing, that he violated incarcerated individual rules 101.10 (7 NYCRR 270.2 [B] [2] [i] [sex offense]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visitation violation]). Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Bottom v Annucci, 26 NY3d 983, 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci, 227 AD3d 1413, 1414 [4th Dept 2024]). Specifically, the misbehavior report and video of the relevant incident reviewed by the hearing officer constitute substantial evidence to support the determination (see generally Derby, 227 AD3d at 1414; Matter of Hood v Fischer, 100 AD3d 1122, 1123-1124 [3d Dept 2012]).

Entered: March 27, 2026

Ann Dillon Flynn

Clerk of the Court

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