Bartley v. Fischer

73 A.D.3d 1363, 901 N.Y.S.2d 743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2010
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review (1) a determination of respondent which found petitioner guilty of violating a prison disciplinary rule, and (2) a determination of respondent which directed that petitioner be placed in involuntary protective custody.

We confirm both determinations.

* First, with regard to the prison disciplinary proceeding, petitioner claims that his employee assistant was inadequate in failing to provide him with a copy of the use of force report, but any error was cured given that the Hearing Officer provided him with a copy (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]). Moreover, substantial evidence supports the determination of guilt in the form of the misbehavior report, testimony of its author and other documentary evidence (see Matter of Bowers v Venettozzi, 59 AD3d 793 [2009]; Matter of Lamage v Fischer, 58 AD3d 1045, 1045 [2009]). While the other inmate instigated the fight and petitioner claimed that he only acted in self-defense, the Hearing Officer was free to credit evidence that his participation exceeded that necessary to protect himself (see Matter of Lamage v Fischer, 58 AD3d at 1045-1046).

Lastly, the inmate who attacked petitioner had a history of assaultive behavior, used a weapon in the attack, and failed to explain why the fight occurred or address concerns that petitioner was still in jeopardy. Substantial evidence accordingly supports the Hearing Officer’s determination that petitioner “may be a potential victim,” rendering involuntary protective custody appropriate (7 NYCRR 330.2 [b]; see Matter of Lane v Kirkpatrick, 68 AD3d 1280, 1281 [2009]).

Petitioner’s remaining arguments have been considered and found to be without merit.

Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.

Petitioner filed two petitions under the same index number, which have been consistently treated as one proceeding by both Supreme Court and the parties. We will do the same.