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Cruz v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 4, 2008

IN THE MATTER OF AUGUSTINE CRUZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

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: Mercure, J.P., Carpinello, Rose, Malone Jr. and Kavanagh, 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 which found petitioner guilty of violating certain prison disciplinary rules.

Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct, assaulting an inmate, possessing a weapon and creating a disturbance. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of all charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment. We now confirm.

Contrary to petitioner's assertion, the determination of guilt is supported by substantial evidence in the form of the misbehavior report, related documentation and photographs and testimony adduced at the hearing (see Matter of Shankle v Goord, 45 AD3d 1084, 1085 [2007]). Petitioner's denial of the allegations created a credibility issue for resolution by the Hearing Officer (see Matter of Brown v Selsky, 49 AD3d 1108, 1108 [2008]). We have examined petitioner's remaining contentions, including his claims that the misbehavior report was defective and the hearing was untimely, and, to the extent preserved, find them to be unavailing.

Mercure, J.P., Carpinello, Rose, Malone Jr. and Kavanagh, JJ., concur.

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

20081204

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