        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

589
TP 12-02389
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF OMAN GUTIERREZ, PETITIONER,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Wyoming County [Mark H.
Dadd, A.J.], entered December 19, 2012) to review a determination of
respondent. The determination segregated petitioner from the general
population.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: In this CPLR article 78 proceeding, which was
transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks
review of respondent’s determination directing that he be placed in
administrative segregation. Contrary to petitioner’s contention,
substantial evidence supports the determination that petitioner’s
presence in the general population would pose a threat to the safety
and security of the facility where he is incarcerated (see generally 7
NYCRR 301.4 [b]; Matter of Blake v Selsky, 10 AD3d 774, 775; Matter of
O’Keefe v Coombe, 233 AD2d 640, 640). Petitioner’s further contention
that he was impermissibly denied the right to observe the search of
his cell is without merit (cf. Matter of Morales v Fischer, 89 AD3d
1346, 1347; Matter of Johnson v Goord, 288 AD2d 525, 526).

     Petitioner’s contention that he was denied due process as a
result of the hearing officer’s denial of his request to call several
witnesses and provide certain documents is without merit. A
petitioner’s due process rights with respect to matters of involuntary
administrative segregation are “satisfied by notice to petitioner and
an opportunity to present his [or her] views” (Matter of Blake v
Coughlin, 189 AD2d 1016, 1017; see Matter of Burr v Goord, 17 AD3d
                                 -2-                            589
                                                          TP 12-02389

751, 752), which petitioner was afforded here.




Entered:   June 7, 2013                          Frances E. Cafarell
                                                 Clerk of the Court
