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Sital v. Fischer

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


April 15, 2010

IN THE MATTER OF FRANS SITAL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: March 1, 2010

Before: Cardona, P.J., Spain, 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After he refused a correction officer's directive to provide a urine specimen, petitioner was charged in a misbehavior report with failing to comply with urinalysis testing procedures and refusing a direct order. He was found guilty of the charges following a tier III disciplinary hearing. The determination was later affirmed on administratve appeal with a modified penalty. This CPLR article 78 proceeding ensued.

As an initial matter, contrary to petitioner's claim, we do not find that gaps in the hearing transcript are so significant as to preclude meaningful review (see Matter of Villafane v Fischer, 63 AD3d 1403, 1404 [2009]; Matter of Finley v Goord, 47 AD3d 995, 996 [2008]). Turning to the merits, the detailed misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Dallio v Fischer, 68 AD3d 1380 [2009]; Matter of Rosario v Selsky, 37 AD3d 921, 921 [2007]). Although petitioner maintained that the misbehavior report was fabricated and constituted a form of retaliation, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]; Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]). Petitioner's remaining contentions, including his claim that the Hearing Officer was biased, have been considered and found to be unavailing.

Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur.

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

20100415

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