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Pellot v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF GEORGE PELLOT, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Following an incident in which petitioner brushed up against a female cook in an inappropriate manner while she was working behind the serving line, petitioner was charged in a misbehavior report with assaulting staff, forcibly touching an employee and physically interfering with an employee. He was found guilty of interfering with an employee following a tier III disciplinary hearing. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, the detailed misbehavior report, authored by the employee whom petitioner touched, and related documentation constitute substantial evidence supporting the determination of guilt (see Matter of Kimble v Fischer, 56 AD3d 879, 880 [2008]; Matter of Tayler v Selsky, 49 AD3d 1060, 1060 [2008]). The contrary testimony of petitioner and that of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]; Matter of Perez v Dubray, 55 AD3d 1119, 1119 [2008]). Petitioner's claim that the Hearing Officer improperly failed to inquire whether petitioner understood the charges or needed a translator has not been preserved for our review (see Matter of Quinones v Fischer, 55 AD3d 1200, 1200-1201 [2008]; Matter of Britt v Fischer, 54 AD3d 1087, 1087 [2008]). Therefore, the determination must be confirmed.

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

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

20091119

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