Matter of Ruiz v Fischer

Matter of Ruiz v Fischer 2010 NY Slip Op 08041 [78 AD3d 1358] November 10, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Vincent A. Ruiz, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Vincent A. Ruiz, Gowanda, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was served with a misbehavior report charging him with possession of gang materials when, during security rounds, two notes were found in the area of his personal lockers that were believed to be gang related. Petitioner was found guilty after a tier III disciplinary hearing, and that determination was administratively affirmed, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, along with petitioner's admission that he authored one of the notes and the testimony of a gang expert that the note was gang related, provide substantial evidence to support the determination (see Matter of Cochran v Bezio, 70 AD3d 1161, 1162 [2010]; Matter of Umoja v Bezio, 64 AD3d 1066, 1066 [2009]). Petitioner's claims that the note was to his girlfriend and that he had never been affiliated with a gang raised questions of credibility for the Hearing Officer to resolve (see Matter of Devaughn v Bezio, 75 AD3d 673 [2010]).

Turning to petitioner's procedural claims, the record demonstrates that he was informed [*2]of his right to assistance and unequivocally declined (see Matter of Paige v Goord, 19 AD3d 908, 909 [2005]; Matter of Johnson v Goord, 297 AD2d 881, 883 [2002]). Likewise, petitioner was not denied the right to call witnesses since he stated several times during the hearing that he did not wish to call any witnesses (see Matter of Cornwall v Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Dixon v Brown, 62 AD3d 1223, 1224 [2009], lv denied 13 NY3d 704 [2009]).

We have examined petitioner's remaining contentions and find them to be either unpreserved or without merit.

Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.