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Lynch v. Fischer

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


August 5, 2010

IN THE MATTER OF ANTHONY LYNCH, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 9, 2010

Before: Cardona, P.J., Rose, Lahtinen, 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 a prison disciplinary rule.

Petitioner was charged in a misbehavior report with engaging in lewd conduct after he exposed his genitals to female correction officers. Following a tier III disciplinary hearing, he was found guilty of the charge. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of the correction officers who observed the incident in question, provide substantial evidence supporting the determination of guilt (see Matter of Hodges v Fischer, 71 AD3d 1295 [2010]; Matter of Dallio v Fischer, 68 AD3d 1380 [2009]). Petitioner's denial of wrongdoing presented a credibility issue for the Hearing Officer to resolve (see Matter of James v Fischer, 58 AD3d 981 [2009]; Matter of Rojas v Selsky, 55 AD3d 1189 [2008]). We have considered petitioner's remaining contentions, including his claim that the disposition was founded upon inaccurate information, and find them to be unavailing.

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

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

20100805

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