Davis v. Prack

90 A.D.3d 1447, 934 N.Y.2d 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 2011
• Status: Published

Opinion

We confirm. Substantial evidence, consisting of the first misbehavior report and the testimony of the correction officer who authored it, supports the determination finding petitioner guilty of assaulting an inmate, fighting and engaging in violent conduct (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). Petitioner’s contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Britt v Fischer, 54 AD3d 1087 [2008]; Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). Moreover, we find no merit to petitioner’s claim that he was improperly denied a videotape of the incident given that the record established that no such videotape existed (see Matter of Bridgeforth v Fischer, 78 AD3d 1401, 1401-1402 [2010]; Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]). We have considered petitioner’s remaining claims and find them to be either unpreserved for our review or lacking in merit.

Mercure, A.P.J., Spain, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.