McLeod v. Fischer

Appellate Division of the Supreme Court of New York

McLeod v. Fischer

122 A.D.3d 1037, 994 N.Y.S.2d 737, 2014 NY Slip Op 07716, 2014 N.Y. App. Div. LEXIS 7666

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 2014·Published·Cited by 4 cases

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.

Petitioner was observed attempting to stab another inmate with a shank during a melee in the prison yard and, as a result, was charged in a misbehavior report with disobeying a direct order, fighting, creating a disturbance, possession of a weapon and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. However, on administrative appeal the charges of disobeying a direct order and fighting were dismissed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. Contrary to petitioner’s contention, the misbehavior report, testimony at the hearing from correction officers who witnessed the event and documentary evidence submitted at the hearing provide substantial evidence to support the de[1038]*1038termination of guilt (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Williams v Goord, 23 AD3d 972, 973 [2005]). Any alleged inconsistencies in the testimony or evidence created a credibility issue for the Hearing Officer to resolve (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]).

We have reviewed petitioner’s remaining contentions, including his claim of hearing officer bias, and find them to be without merit.

Lahtinen, J.E, McCarthy, Garry, Rose and Devine, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

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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.

Petitioner was observed attempting to stab another inmate with a shank during a melee in the prison yard and, as a result, was charged in a misbehavior report with disobeying a direct order, fighting, creating a disturbance, possession of a weapon and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. However, on administrative appeal the charges of disobeying a direct order and fighting were dismissed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. Contrary to petitioner’s contention, the misbehavior report, testimony at the hearing from correction officers who witnessed the event and documentary evidence submitted at the hearing provide substantial evidence to support the de[1038]*1038termination of guilt (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Williams v Goord, 23 AD3d 972, 973 [2005]). Any alleged inconsistencies in the testimony or evidence created a credibility issue for the Hearing Officer to resolve (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]).

We have reviewed petitioner’s remaining contentions, including his claim of hearing officer bias, and find them to be without merit.

Lahtinen, J.E, McCarthy, Garry, Rose and Devine, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

McLeod v. Fischer, 122 A.D.3d 1037, 994 N.Y.S.2d 737, 2014 NY Slip Op 07716, 2014 N.Y. App. Div. LEXIS 7666 (N.Y. Ct. App. 2014).

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