           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
299
TP 10-02236
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


IN THE MATTER OF RAHEEM OLIVER, PETITIONER,

                     V                               MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (EDWARD L. CHASSIN OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO 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 November 8, 2010) to review a determination of
respondent. The determination found after a Tier III hearing that
petitioner had violated an inmate rule.

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

      Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a Tier III hearing, that
he violated inmate rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon
possession]). Contrary to petitioner’s contention, the determination
is supported by substantial evidence. The misbehavior report,
together with the testimony of the correction officer who wrote it and
the photographs of the shanks found in a light fixture, constitutes
substantial evidence supporting the determination that petitioner
violated inmate rule 113.10 (see generally Matter of Foster v
Coughlin, 76 NY2d 964, 966; People ex rel. Vega v Smith, 66 NY2d 130,
140).




Entered:   March 25, 2011                          Patricia L. Morgan
                                                   Clerk of the Court
