Matter of Garcia v Bertone

Jan 26, 2012
511065
Versions:91 AD3d 1217
2012 NY Slip Op 00432

In the Matter of Edwin Garcia, Petitioner, v M. Bertone, as Disciplinary Hearing Officer, et al., Respondents.

—[*1] Edwin Garcia, Wallkill, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

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 the Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner began arguing with another inmate and ignored a correction officer‘s order to stop until after a physical altercation ensued. As a result, petitioner was charged in a misbehavior report with fighting and refusing a direct order. He was found guilty of the charges following a tier II 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 its author, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). While petitioner stated that he did not hear the correction officer‘s initial order due to his hearing impairment and that he acted in self-defense, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]). Petitioner‘s remaining contentions have not been preserved for our review or are lacking in merit. [*2]

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