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Swan v. Fischer

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


May 20, 2010

IN THE MATTER OF GEORGE W. SWAN, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Peters, J.P., Spain, Malone Jr., Kavanagh 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.

Angered at a new policy being announced by a counselor to a group of inmates, petitioner engaged in a loud exchange with the counselor and refused to leave when initially ordered to do so. A misbehavior report was issued and, following a disciplinary hearing, petitioner was found guilty of refusing a direct order, interference, harassment, creating a disturbance and engaging in activity detrimental to the order of the facility. The determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, as well as the testimony of the counselor and other witnesses, provide substantial evidence to support the determination of guilt (see Matter of Raqiyb v Goord, 30 AD3d 810, 810 [2006]; Matter of Ragin v Goord, 1 AD3d 842, 843 [2003]). Petitioner downplayed the incident and presented a defense of retaliation, but such created credibility issues for the Hearing Officer to resolve (see Matter of Graham v McKinney, 24 AD3d 1151, 1151-1152 [2005]; Matter of Shell v Superintendent of Oneida Correctional Facility, 18 AD3d 1044, 1044-1045 [2005]). Further, the penalty imposed was not so shocking to one's sense of fairness as to be excessive (see Matter of Martin v Goord, 46 AD3d 1294, 1295 [2007]). His remaining claims have been examined and, to the extent they are properly before us, found to be without merit.

Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.

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

20100520

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