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McIver v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 21, 2009

IN THE MATTER OF DEREK MCIVER, 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: April 8, 2009

Before: Mercure, J.P., Spain, Lahtinen, Stein and Garry, 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 disobeying a direct order, making threats and creating a disturbance. At the conclusion of a tier III disciplinary hearing, he was found guilty of all charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. Substantial evidence in the form of the misbehavior report and testimony adduced at the hearing, including statements made by petitioner, supports the determination of guilt (see Matter of McFadden v Armmitage, 1 AD3d 670, 670 [2003]). Petitioner's claim that the disciplinary proceedings were initiated against him for retaliatory purposes created a credibility issue for resolution by the Hearing Officer (see Matter of Taveras v Fischer, 59 AD3d 827, 828 [2009]). Petitioner's remaining contentions, including his claims that the misbehavior report failed to provide sufficient notice of the charges and he was denied the right to present witness testimony, have been examined and found to be unavailing.

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

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

20090521

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