IN RE: Vincent WARREN

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

IN RE: Vincent WARREN, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: June 25, 2009

Before:  MERCURE, J.P., LAHTINEN, KANE, STEIN and McCARTHY, JJ. Vincent Warren, Pine City, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), 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 certain prison disciplinary rules.

During the time that petitioner was confined to an observation cell, the cell was searched and a correction officer recovered a yellow piece of plastic sharpened to a point on one end, believed to have been made from a toothbrush handle, and a piece of plastic wrap that smelled of feces.   As a result, petitioner was charged in a misbehavior report with smuggling and possessing a weapon.   Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Mastropietro v. New York State Dept. of Corrections, 52 A.D.3d 1125, 1126, 862 N.Y.S.2d 131 [2008], lv. denied 11 N.Y.3d 711, 872 N.Y.S.2d 73, 900 N.E.2d 556 [2008];  Matter of LaFontant v. Fischer, 51 A.D.3d 1347, 1347, 860 N.Y.S.2d 637 [2008] ).   We are unpersuaded by petitioner's claim that he was improperly denied certain witnesses given that their testimony would have been either irrelevant or redundant under the circumstances presented (see Matter of Rizzuto v. Goord, 36 A.D.3d 1124, 1125, 826 N.Y.S.2d 852 [2007];  Matter of Pettus v. West, 28 A.D.3d 907, 908, 813 N.Y.S.2d 563 [2006] ).   In addition, petitioner's assertion that he was improperly denied an employee assistant is belied by the record inasmuch as the correction officer who served him with the assistance form testified that petitioner failed to choose one (see Matter of Martinez v. Selsky, 53 A.D.3d 989, 862 N.Y.S.2d 632 [2008] ).   Finally, petitioner's claim of hearing officer bias is unsubstantiated by the record and there is no indication that the determination of guilt flowed from any alleged bias (see Matter of Yancey v. Conway, 46 A.D.3d 1042, 847 N.Y.S.2d 282 [2007];  Matter of Lewis v. Goord, 43 A.D.3d 1259, 842 N.Y.S.2d 114 [2007], lv. dismissed 9 N.Y.3d 1030, 852 N.Y.S.2d 15, 881 N.E.2d 1202 [2008] ).

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

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