Matter of Gloss v Fischer

Matter of Gloss v Fischer 2009 NY Slip Op 06617 [65 AD3d 1430] September 24, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 4, 2009

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

—[*1] Richard Gloss, Gowanda, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 was charged in a misbehavior report with forgery and providing false information after he supplied correction officials with, among other things, an ASAT certificate from another correctional facility that had been falsified. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's claim, the determination finding him guilty of the charges is not inconsistent. The misbehavior report, together with the documentary evidence and testimony adduced at the hearing, provide substantial evidence supporting the finding that petitioner not only supplied a forged ASAT certificate, but that he provided false information in doing so (see Matter of Gonzalez v Goord, 24 AD3d 836, 836 [2005]; Matter of Torres v Goord, 267 AD2d 732, 733 [1999]). Although petitioner asserts that he was improperly denied an assistant to help him prepare for the hearing, he was not entitled to one inasmuch as he was not confined following the preparation of the misbehavior report and did not satisfy any of the other [*2]criteria set forth in 7 NYCRR 251-4.1 (a) (see Matter of Alston v Goord, 25 AD3d 852, 853 [2006]; Matter of Miller v Goord, 2 AD3d 928, 929 [2003]). Petitioner has not preserved his claim that he was denied a fair hearing given his failure to raise it either at the hearing or in his administrative appeal (see Matter of Peoples v Selsky, 33 AD3d 1179, 1180 [2006]).

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