Opinion
2013-03-7
In the Matter of Ronald ALSTON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Ronald Alston, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.
Ronald Alston, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, STEIN and EGAN, JR., JJ.
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.
Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting him from engaging in a sex act with another inmate. His subsequent administrative appeal was unsuccessful, and this CPLR article 78 proceeding ensued. The misbehavior report, together with the testimony of its author and the confidential testimony, provide substantial evidence to support the determination of guilt ( see Matter of Montgomery v. Fischer, 84 A.D.3d 1666, 1667, 923 N.Y.S.2d 918 [2011];Matter of Parker v. Fischer, 70 A.D.3d 1086, 1087, 897 N.Y.S.2d 525 [2010] ). Contrary to petitioner's argument, the fact that he was found not guilty at a separate disciplinary hearing of assaulting the other inmate during a different incident has no preclusive effect upon the determination ( see Matter of Calcaterra v. Fischer, 73 A.D.3d 1370, 1371, 901 N.Y.S.2d 395 [2010] ). We have considered petitioner's remaining contentions, including his assertion that the Hearing Officer was biased against him and improperly deprived him of the opportunity to present relevant evidence and testimony, and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.