State of New York Supreme Court, Appellate Division Third Judicial Department
January 14, 2010
IN THE MATTER OF WILLIAM MCLAUGHLIN, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: November 4, 2009
Before: Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following a melee in the prison exercise yard involving multiple inmates, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and failing to follow a direct order. Petitioner was found guilty of all charges following a tier III disciplinary hearing and that determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and the hearing testimony of its author provide substantial evidence in support of the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 ). Petitioner's testimony that he was not involved in the fight created a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v Rock, 64 AD3d 1096, 1096 , lv denied ___ NY3d ___ [Dec. 15, 2009]). Finally, we reject petitioner's contention that the Hearing Officer erred by failing to exonerate him following the viewing at the hearing of a videotape of the melee, as our review of the videotape confirms that there is no information contained therein that contradicted the misbehavior report (see Matter of Addison v Selsky, 256 AD2d 787, 788 ). Petitioner's remaining claims, including that the Hearing Officer was biased, have been considered and found lacking in merit.
Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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