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Leigh v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 26, 2008

IN THE MATTER OF KENNETH LEIGH, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Cardona, P.J., Spain, Carpinello, Kane and Stein, JJ.

MEMORANDUM AND JUDGMENT

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

At the conclusion of a tier III prison disciplinary hearing, petitioner was found guilty of refusing a direct order, being out of place, violating count procedures, creating a disturbance and harassing staff. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued. We now confirm.

The determination of guilt is supported by substantial evidence consisting of the misbehavior report and corroborating hearing testimony from the correction officer who authored it (see Matter of Vigliotti v Bell, 52 AD3d 1064, 1064 [2008]). To the extent that petitioner and his inmate witness offered exculpatory testimony, credibility issues were created for resolution by the Hearing Officer (see Matter of Griffin v Goord, 43 AD3d 591, 591 [2007]). Petitioner's remaining contentions, including his claim of hearing officer bias, have been scrutinized and found to be without merit.

Cardona, P.J., Spain, Carpinello, Kane and Stein, JJ., concur.

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

20081126

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