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Perez v. Fischer

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


January 28, 2010

IN THE MATTER OF EUGENE PEREZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 30, 2009

Before: Cardona, P.J., Peters, Lahtinen, Stein 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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in two misbehavior reports with numerous disciplinary rule violations. In the first report, he was charged with refusing a direct order, assaulting staff, engaging in violent conduct and failing to follow frisk procedures after he refused to comply with a correction officer's directives during a pat frisk and proceeded to strike the officer in the face. In the second report, he was charged with possessing contraband and possessing an altered item after a pointed piece of metal was found in a property bag belonging to him. A tier III disciplinary hearing was thereafter conducted on the charges contained in both reports and he was found guilty of the charges contained in the first report. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, documentary evidence, and testimony presented at the hearing provide substantial evidence supporting the determination of guilt (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]; Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]). Petitioner's protestation of innocence presented a credibility issue for the hearing officer to resolve (see Matter of Modlenaar v Goord, 21 AD3d 1190, 1191 [2005]; Matter of Marcial v Goord, 2 AD3d 1243, 1244 [2003]). His remaining contentions, including his claim of hearing officer bias, have not been preserved for our review .

Cardona, P.J., Peters, Lahtinen, Stein and Garry, JJ., concur.

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

20100128

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