IN RE: Gerard DOMOND

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

IN RE: Gerard DOMOND, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, et al., Respondents.

Decided: October 30, 2008

Before:  MERCURE, J.P., PETERS, ROSE, MALONE JR. and KAVANAGH, JJ. Gerard Domond, Elmira, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

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 certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with engaging in lewd conduct and disobeying a direct order.   Following a tier III disciplinary hearing, petitioner was found guilty of both charges.   That determination was administratively affirmed and this CPLR article 78 proceeding seeking annulment ensued.

We confirm.   Preliminarily, inasmuch as the petition challenges the sufficiency of the evidence supporting the determination of guilt, a question of substantial evidence has been raised which justified the transfer of this matter to this Court (see Matter of Encarnacion v. Goord, 8 A.D.3d 843, 844, 778 N.Y.S.2d 552 [2004], lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667 [2004] ).   Turning to the merits, the misbehavior report, together with the hearing testimony from the facility nurse who was involved in the incident and authored the report, comprises substantial evidence to support the determination (see Matter of Adams v. Selsky, 54 A.D.3d 477, 478, 862 N.Y.S.2d 648 [2008] ).   Petitioner's remaining procedural contentions, including his claims that he was denied the right to present witness testimony and that the Hearing Officer was biased, have been examined and found to be unavailing.

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

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