Matter of Dalrymple v Fischer

Matter of Dalrymple v Fischer 2009 NY Slip Op 06092 [65 AD3d 725] August 6, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 30, 2009

In the Matter of Gejuane Dalrymple, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Gejuane Dalrymple, Attica, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a search of petitioner's cell during which correction officers discovered three plastic dice, 96 postage stamps and four tablets of prescription ibuprofen, he was served with a misbehavior report. A tier III disciplinary proceeding ensued, after which petitioner was found guilty of possessing unauthorized medication, unauthorized property and gambling paraphernalia. That determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding. We now confirm.

Petitioner's lone contention is that his determination must be annulled because he was improperly denied the right to be present during the search of his cell pursuant to Department of Correctional Services Directive No. 4910 § V-C-1 (see Matter of Vines v Goord, 19 AD3d 951, 952 [2005]; Matter of Holloway v Lacy, 263 AD2d 740, 741 [1999]).[FN*] We find petitioner's [*2]argument unavailing, inasmuch as the officer who conducted the search of petitioner's cell testified that the door was left open during the search and petitioner, although asked to leave the cell, was not directed to leave the immediate vicinity. Petitioner and another inmate testified to the contrary, presenting an issue of credibility for the Hearing Officer to resolve (see Matter of Vines v Goord, 19 AD3d at 952; Matter of Smith v Selsky, 294 AD2d 629, 630 [2002]).

Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote *: Although this proceeding appears to have been improperly transferred inasmuch as petitioner does not raise an issue of substantial evidence, we shall retain jurisdiction and address the merits of petitioner's claim in the interest of judicial economy (see Matter of Burgess v Selsky, 50 AD3d 1347, 1348 [2008]).