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Johnson v. Rock

State of New York Supreme Court, Appellate Division Third Judicial Department


July 30, 2009

IN THE MATTER OF MICHAEL JOHNSON, PETITIONER,
v.
DAVID A. ROCK, AS SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ.

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

Following a melee involving multiple inmates in the prison yard, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and refusing a direct order. A tier III disciplinary hearing was convened, at the conclusion of which petitioner was found guilty as charged and a penalty was imposed. The determination of guilt was affirmed upon petitioner's administrative appeal, but his penalty was reduced. He subsequently commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination of guilt.

We confirm. The misbehavior report and testimony adduced at the hearing provide substantial evidence to support the determination of guilt, and petitioner's insistence that he did not take part in the fighting raised credibility issues which are properly resolved by the Hearing Officer (see Matter of Edwards v Venettozzi, 61 AD3d 1224, 1225 [2009]; Matter of Peets v Bezio, 59 AD3d 833, 834 [2009]). Additionally, while the hearing transcript contains minor gaps and omissions, these deficiencies do not render it so incomplete as to preclude meaningful judicial review (see Matter of Daniels v Goord, 31 AD3d 1076, 1077 [2006]). Petitioner's remaining arguments are either unpreserved for our review (see Matter of Perez v Fischer, 62 AD3d 1104, 1105 [2009]; Matter of Peets v Bezio, 59 AD3d at 834) or have been examined and found to be without merit.

Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.

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

20090730

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