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Malik v. Bezio

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


September 23, 2010

IN THE MATTER OF SULTAN A. MALIK, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.

While petitioner was being transported from one correctional facility to another, the correction officer who was transporting him opened the rear door of the van to allow him to exit. When the officer did so, petitioner kicked him in the chest and arm. As a result, petitioner was charged in a misbehavior report with assaulting staff, engaging in violent conduct and interfering with an employee. He was found guilty of these charges at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Perez v Fischer, 69 AD3d 1279, 1279 [2010]; Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]). Petitioner's assertions that he was assaulted by the officer and that the misbehavior report was written in retaliation for a prior incident presented credibility issues for the Hearing Officer to resolve (see Matter of Terrance v Fischer, 64 AD3d 1110, 1111 [2009]; Matter of Jackson v Dubray, 56 AD3d 919 [2008]). Moreover, we find no error in the denial of petitioner's request for the videotape of the incident in question inasmuch as the Hearing Officer ascertained that such videotape did not exist (see Matter of Applewhite v Goord, 45 AD3d 1112, 1112 [2007], lv denied 10 NY3d 711 [2008]; Matter of Griffin v Goord, 43 AD3d 591, 592 [2007]). On the other hand, given that there is no indication in the record that the disclosure of the injured officer's medical records would jeopardize institutional security, the Hearing Officer should have provided them to petitioner (see Matter of Jones v Fischer, 69 AD3d 1065, 1066 [2010]; Matter of McLean v Fischer, 63 AD3d 1468, 1469-1470 [2009]). Nevertheless, in view of the overwhelming evidence of petitioner's guilt and that the Hearing Officer did not rely on such records, this error was harmless (see Matter of Jones v Fischer, 69 AD3d at 1066; Matter of McLean v Fischer, 63 AD3d at 1470). Petitioner's remaining contentions, including his claim that the Hearing Officer was biased, have been considered and are without merit.

Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur.

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

20100923

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