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Edwards v. Bezio

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


January 14, 2010

IN THE MATTER OF MARK EDWARDS, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Peters, Rose, Malone Jr. and Stein, 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 an altercation with correction officers, petitioner was charged in a misbehavior report with attempting to inflict bodily harm on a staff member, violent conduct, disobeying a direct order and interfering with an employee. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of all charges. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's contention, the misbehavior report, together with the testimony of the correction officers involved in the incident and other documentary evidence, provide substantial evidence to support the determination of guilt (see Matter of Matthews v Goord, 47 AD3d 1043, 1043 [2008]; Matter of Spencer v Goord, 38 AD3d 1028, 1028 [2007], lv denied 9 NY3d 802 [2007]). Contradictory testimony given by petitioner and his inmate witnesses that the correction officers were the aggressors presented a credibility issue for the Hearing Officer to resolve (see Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]). Petitioner's remaining claims, to the extent they are properly before us, have been reviewed and found to be without merit.

Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur.

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

20100114

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