Matter of Domond v Fischer

Matter of Domond v Fischer 2008 NY Slip Op 08234 [55 AD3d 1199] October 30, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

In the Matter of Gerard Domond, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.

—[*1] 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 AD3d 843, 844 [2004], lv denied 3 NY3d 607 [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 AD3d 477, 478 [2008]). Petitioner's remaining procedural [*2]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.

Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.