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Flemming v. Fischer

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


June 24, 2010

IN THE MATTER OF ROBERT FLEMMING, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Mercure, J.P., Spain, 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, a prison inmate, was using the telephone when a correction officer gave him a direct order to sign the telephone sheet. Petitioner refused in a profane manner after which a sergeant was notified. The sergeant arrived and directed petitioner to get off the telephone and, after refusing, petitioner swung a closed fist at the sergeant. In the ensuing struggle, three correction officers were injured. Based upon this incident, petitioner was served with a misbehavior report charging him with assault, refusing a direct order, using the telephone without authorization and violating telephone guidelines. Petitioner was found guilty after a tier III disciplinary hearing and, after the determination was affirmed administratively, petitioner commenced this CPLR article 78 proceeding.

We confirm. The detailed misbehavior report, along with the hearing testimony, including petitioner's admissions, and the voluminous documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Perez v Fischer, 69 AD3d 1279, 1279 [2010]; Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010]). To the extent that petitioner asserted that he had no reason to assault the officers, that raised an issue of credibility for the Hearing Officer to resolve (see Matter of Edwards v Leclaire, 71 AD3d 1199 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1086 [2010]). Petitioner's claim that he was improperly denied the right to view photographs of the officers' injuries is unpreserved for our review based upon his failure to raise that objection during the hearing (see Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]).

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

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

20100624

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