IN RE: Roberto BERTA

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

IN RE: Roberto BERTA, Petitioner, v. Floyd G. BENNETT, as Superintendent of the Elmira Correctional Facility, Respondent.

Decided: January 29, 1998

Before CARDONA, P.J., and MERCURE, WHITE, YESAWICH and PETERS, JJ. Roberto Berta, Ossining, in person. Dennis C. Vacco, Attorney General (Lew A. Millenbach, of counsel), Albany, for respondent.

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

Following a tier II prison disciplinary hearing, petitioner, an inmate at Elmira Correctional Facility in Chemung County, was found guilty of violating a prison disciplinary rule prohibiting inmates from possessing contraband after correction officers found 51 pieces of homemade incense in his cell.   Petitioner's admission that the incense was his, along with the misbehavior report written by the correction officer who confiscated the incense and who identified it as contraband, provided substantial evidence to support the determination of guilt (see, Matter of Sieteski v. Di Biase, 242 A.D.2d 753, 661 N.Y.S.2d 314).   Accordingly, we confirm.

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


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