Peana v. Fischer

Sep 18, 2008
Versions:54 A.D.3d 1126
864 N.Y.S.2d 577

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.

While on the draft bus, petitioner complained to a correction officer that two other inmates had assaulted him and broken his glasses. He then ignored the officer‘s directive to come to the front of the bus. When the officer approached petitioner, petitioner began yelling and kicked the officer in the leg. As a result, petitioner was charged in a misbehavior report with assaulting staff, refusing a direct order and creating a disturbance. He was found guilty of the charges following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal with a modified penalty, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, documentary evidence and testimony adduced at the hearing provide substantial evidence supporting the determination of guilt (see Matter of Credle v Selsky, 46 AD3d 989, 990 [2007]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872 [2006]). The contrary testimony of petitioner and his inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Russell v Selsky, 50 AD3d 1412, 1412-1413 [2008]; Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]). Accordingly, we find no reason to disturb respondent‘s determination.

Peters, J.P, Spain, Lahtinen, Kavanagh and Stein, JJ., concur.

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