Matter of Guillory v Fischer

Matter of Guillory v Fischer 2013 NY Slip Op 07113 Decided on October 31, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 31, 2013
516334

[*1]In the Matter of PATRICK GUILLORY, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 18, 2013
Before: Rose, J.P., Spain, Garry and Egan Jr., JJ.


Patrick Guillory, Attica, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cerio, J.), entered March 5, 2013 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with smuggling and possessing an article where its use or possession is prohibited after a pat frisk revealed tobacco hidden in his shoe. Following a tier III disciplinary hearing, petitioner was found guilty as charged and the determination was affirmed upon administrative review with a reduced penalty. Petitioner commenced this CPLR article 78 proceeding challenging the determination and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

Initially, inasmuch as the petition fails to raise a question of substantial evidence, we reject petitioner's contention that Supreme Court erred in not transferring the proceeding in the first instance (see Matter of Taylor v Fischer, 80 AD3d 1037, 1037 [2011]). We also reject petitioner's contention that he was denied video footage from the area in which he was searched, as there is no evidence that such footage ever existed (see Matter of Barnes v Fischer, 93 AD3d 967, 968 [2012]). Furthermore, we find that the misbehavior report provided adequate notice of the charges to allow petitioner to prepare an adequate defense (see Matter of Toro v Fischer, 104 [*2]AD3d 1036, 1037 [2013]). Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied ___ NY3d ___ [Sept. 12, 2013]).

Rose, J.P., Spain, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.