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Bowers v. Venettozzi

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 11, 2009

IN THE MATTER OF KEITH BOWERS, PETITIONER,
v.
D. VENETTOZZI, 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: December 18, 2008

Before: Rose, J.P., Lahtinen, Kane and Malone Jr., JJ.

MEMORANDUM AND JUDGMENT

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

Following an altercation with another inmate, petitioner was charged in a misbehavior report with violent conduct, assault, fighting and refusing a direct order. At the tier III disciplinary hearing, petitioner pleaded guilty with explanation to each of the charges and asserted a justification defense. Ultimately, petitioner was found guilty and an administrative penalty was imposed. Although the penalty subsequently was modified, petitioner's administrative appeal otherwise proved unsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 seeking to annul the determination.

We confirm. Given petitioner's plea and the testimony of the correction officers who responded to quell the violent conduct, we conclude that the determination of guilt was supported by substantial evidence (see Matter of Ramirez v Goord, 32 AD3d 601 [2006]; Matter of Calhoun v Goord, 20 AD3d 628, 628-629 [2005]). Petitioner's contrary claim that he acted only in self-defense and did not willingly re-engage in the fighting, as the correction officers testified, presented a question of credibility for the Hearing Officer to resolve (see Matter of Carter v Goord, 8 AD3d 771, 772 [2004]). Petitioner's remaining claims, including his claim of hearing officer bias, have been reviewed and found to be without merit.

Rose, J.P., Lahtinen, Kane and Malone Jr., JJ., concur.

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

20090211

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