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Reynoso v. Fischer

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


May 13, 2010

IN THE MATTER OF IGNACIO REYNOSO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

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

During a gallery frisk, petitioner struck a correction officer in the face with handcuffs, and a misbehavior report was thereafter served charging him with assault on staff, engaging in violent conduct, interference, failing to comply with frisk procedures and using contraband as a weapon. After a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative review and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, unusual incident report, other documentary evidence and the testimony of the correction officer who was assaulted provide substantial evidence to support the determination (see Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010]; Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]). Petitioner's contrary claim that the incident was fabricated to cover up an assault by correction officers upon him in retaliation for a grievance filed by petitioner presented a credibility issue for the Hearing Officer to resolve (see Matter of Parkinson v Selsky, 49 AD3d at 985; Matter of Williams v Goord, 308 AD2d 614, 615 [2003]). Nor was petitioner deprived of the right to call witnesses, as the Hearing Officer appropriately determined that some witnesses would not provide relevant testimony and made sufficient inquiry to determine that others had refused to testify (see Matter of Ellison v Fischer, 63 AD3d 1382, 1383 [2009]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). Petitioner's remaining contentions have been reviewed and are either unpreserved or without merit.

Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur.

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

20100513

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