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West v. Fischer

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


May 13, 2010

IN THE MATTER OF HARRY WEST, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Mercure, J.P., Rose, Kavanagh, 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, a prison inmate, allegedly struck a correction officer while leaving his cell and fought against that officer and two others who then attempted to subdue him. A misbehavior report was filed and, after a tier III disciplinary hearing, a Hearing Officer found petitioner guilty of assaulting staff members, engaging in violent conduct and failing to comply with frisk and search procedures. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, as well as the hearing testimony of the correction officers involved in the incident, provide substantial evidence of petitioner's guilt (see Matter of Brown v Fischer, 67 AD3d 1221, 1221 [2009]; Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]). Petitioner claimed that the disciplinary charges were fabricated in retaliation for earlier complaints made by him, but that created a credibility question for the Hearing Officer to resolve (see Matter of Brown v Fischer, 67 AD3d at 1221; Matter of Barrett v Fischer, 58 AD3d 1031, 1032 [2009]). Finally, given the serious nature of petitioner's conduct, we are unpersuaded that the penalty imposed was excessive (see Matter of Shankle v Goord, 45 AD3d 1084, 1085 [2007], lv denied 10 NY3d 701 [2008]).

Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur.

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

20100513

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