Matter of Terrence v. Annucci

134 A.D.3d 1339, 20 N.Y.S.3d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2015
• Docket: 520883
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with lewd conduct after he watched a correction officer from the shower, stepped out of the shower and exposed himself, then returned to the shower leaving the curtain open and began masturbating. Petitioner was found guilty following a tier III disciplinary hearing. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Contrary to petitioner’s contention, the misbehavior report and testimony from the correction officer who observed petitioner’s behavior provide substantial evidence to support the determination of guilt (see Matter of Fero v Prack, 110 AD3d 1128, 1128 [2013]; Matter of Collins v Fischer, 109 AD3d 1040, 1040 [2013], lv dismissed 23 NY3d 954 [2014]). To the extent that petitioner claims that the charge was fabricated, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v Fischer, 87 AD3d 778, 779 [2011]). Petitioner’s procedural challenges, including his claim that the Hearing Officer was biased, have been reviewed and found to be either unpreserved or without merit.

Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.