Watt v. D. Venettozzi

107 A.D.3d 1190, 966 N.Y.S.2d 702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 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.

Petitioner was charged in a misbehavior report with attempted assault, violent conduct and refusing a frisk. Following a tier III disciplinary hearing, he was found guilty of violent conduct and refusing a frisk. The penalty was modified upon administrative review, but the determination was otherwise upheld, prompting petitioner to commence this CPLR article 78 proceeding, which was transferred to this Court.

The misbehavior report and related documentation, together with the testimony of correction officers involved in the incident, constitute substantial evidence supporting the determination that during a random pat frisk by a correction officer, petitioner berated the officer with a racial slur and attempted to kick him (see Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]; Matter of Moreno v Fischer, 100 AD3d 1167, 1167 [2012]). Petitioner’s conflicting version of events created a credibility question for the Hearing Officer to resolve (see Matter of Williams v Fischer, 102 AD3d at 1044). The record reflects that petitioner received adequate employee assistance (see Matter of Booker v Fischer, 102 AD3d 1045, 1045 [2013]). Petitioner’s remaining contentions have been considered and found to lack merit.

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