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Taveras v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 19, 2009

IN THE MATTER OF JUAN TAVERAS, 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: January 26, 2009

Before: Peters, J.P., Rose, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with assaulting a staff member and forcible touching. Following a tier III disciplinary hearing, he was found guilty of both charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The misbehavior report, together with the testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Fuentes v Fischer, 56 AD3d 919, 920 [2008]). Petitioner's denial of the allegations against him and his claim of harassment by the reporting officer created credibility issues for resolution by the Hearing Officer (see Matter of Brown v Selsky, 49 AD3d 1108, 1108 [2008]), as did his claim that the misbehavior report was written for a retaliatory purpose (see Matter of Lewis v Goord, 43 AD3d 1259, 1259 [2007], lv dismissed 9 NY3d 1030 [2008]). We have reviewed petitioner's remaining procedural assertions and, to the extent preserved, find them to be unavailing.

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

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

20090219

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