Leslie v. Fischer

107 A.D.3d 1264, 967 N.Y.S.2d 243

• 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 which found petitioner guilty of violating certain prison disciplinary rules.

A fight broke out among 26 inmates in the yard. During the melee, petitioner was observed throwing punches at an unidentified inmate and ignoring orders to cease such activity. As a result, he was charged in a misbehavior report with engaging in violent conduct, refusing a direct order, creating a disturbance and fighting. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of McNeil v Fischer, 95 AD3d 1520, 1521 [2012]; Matter of Mahon v Goord, 20 AD3d 837, 837 [2005], appeal dismissed 5 NY3d 879 [2005]). The contrary testimony of petitioner’s inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Barnes v Prack, 87 AD3d 1216, 1217 [2011]; Matter of Harvey v Woods, 53 AD3d 988, 988 [2008]). Petitioner’s remaining contentions have not been preserved for our review due to his failure to either raise them at the hearing or in his administrative appeal.

Peters, P.J., Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.