IN RE: Mark FISH

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

IN RE: Mark FISH, Petitioner, v. John BURGE, as Superintendent of Elmira Correctional Facility, Respondent.

Decided: June 26, 2008

Before:  PETERS, J.P., SPAIN, LAHTINEN, KANE and STEIN, JJ. Mark Fish, Elmira, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.

After two small wires that were concealed with glue were found running along the floor and into petitioner's prison cell, he was charged in a misbehavior report with possession of an item in a prohibited area, possession of an unauthorized item and misuse of state property.   A tier II disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of all charges.   That determination was administratively affirmed, prompting this CPLR article 78 proceeding seeking annulment.

We confirm.   The misbehavior report, authored by the correction officer who discovered the wires, is sufficient to provide substantial evidence to support the determination of guilt (see Matter of Adams v. Goord, 45 A.D.3d 940, 940-941, 844 N.Y.S.2d 500 [2007] ).   Further, the details of the misbehavior report were corroborated by the testimony of its author and the testimony of the other officer present when the wires were found.   Petitioner's assertions that he was unaware that the wires were in his cell and that someone else placed them there created credibility issues for resolution by the Hearing Officer (see Matter of Ubaldo v. Leclaire, 46 A.D.3d 975, 975, 846 N.Y.S.2d 781 [2007] ).   To the extent preserved, petitioner's remaining contentions, including his claims that the misbehavior report was defective and the confiscated wires were not properly secured and documented, have been examined and found to be unavailing.

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

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