Bookman v. Fischer

107 A.D.3d 1260, 967 N.Y.S.2d 242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2013
• Status: Published

Opinion

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 Superintendent of Great Meadow Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with refusing a direct order and creating a disturbance. Following a tier II disciplinary hearing, he was found guilty of both charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

Initially, we are unpersuaded by petitioner’s contention that gaps in the hearing transcript preclude meaningful review (see Matter of Argentina v Fischer, 98 AD3d 768, 769 [2012]). Upon reviewing the record, we find that the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Gentle v Bezio, 78 AD3d 1398, 1399 [2010]). The contrary testimony proffered by petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]). Petitioner’s claim that the misbehavior report was written in retaliation for grievances was not raised at the hearing and, therefore, is unpreserved for our review (see Matter of Gillard v White, 79 AD3d 1466, 1467 [2010]). Petitioner’s remaining contentions have been reviewed and are either not properly before this Court or lacking in merit.

Lahtinen, J.P., Spain, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.