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

IN RE: Damecha HARRIS, Petitioner, v. Jeff FLETCHER, as Hearing Officer, et al., Respondents.

Decided: June 29, 2006

Before:  MERCURE, J.P., SPAIN, ROSE, LAHTINEN and KANE, JJ. Damecha Harris, Pine City, petitioner pro se. Eliot Spitzer, 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 Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

 Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule that prohibits the loss of state property because he was not in possession of his state-issued razor.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.   The misbehavior report, the razor issue log and memorandum from the author of the misbehavior report provide substantial evidence to support the determination of guilt (see Matter of Hemphill v. Selsky, 26 A.D.3d 548, 808 N.Y.S.2d 503 [2006] ).   Although petitioner testified that he surrendered the razor prior to leaving the correctional facility for the court appearance, this evidence, which conflicted with the information in the memorandum and razor log, presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v. Ricks, 303 A.D.2d 860, 861, 755 N.Y.S.2d 343 [2003];  Matter of Knowles v. Coombe, 236 A.D.2d 659, 653 N.Y.S.2d 437 [1997] ).   Contrary to petitioner's contention, the record establishes that the determination of guilt was a result of the evidence presented and not from any alleged bias on the part of respondent Hearing Officer (see Matter of Costello v. Smith, 26 A.D.3d 566, 807 N.Y.S.2d 724 [2006] ).   To the extent that petitioner claims that he was precluded from introducing documentary evidence in support of his defense, the issue is raised for the first time in this proceeding and, therefore, it is not preserved for our review (see Matter of Horton v. Allard, 25 A.D.3d 1048, 810 N.Y.S.2d 226 [2006] ).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

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