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Perez v. Bezio

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


September 23, 2010

IN THE MATTER OF EUGENE PEREZ, PETITIONER,
v.
NORMAN R. 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: Cardona, P.J., Spain, Lahtinen, Kavanagh and Garry, JJ.

After an incident in the prison commissary during which petitioner allegedly struck a correction officer in the back, he was served with a misbehavior report charging him with assaulting staff, engaging in violent conduct and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. That determination was upheld on administrative appeal and petitioner, thereafter, commenced this CPLR article 78 proceeding.

We confirm. The detailed misbehavior report, the testimony of the correction officer involved in the incident and the supporting documentation provide substantial evidence to support the determination of guilt (see Matter of West v Fischer, 73 AD3d 1301 [2010]; Matter of Brown v Taylor, 62 AD3d 1230, 1231-1232 [2009]). The conflicting testimony of petitioner and his inmate witnesses raised a credibility issue to be resolved by the Hearing Officer (see Matter of Sital v Fischer, 73 AD3d 1348, 1349 [2010]; Matter of Norris v Fischer, 71 AD3d 1211, 1212 [2010]). Finally, we reject petitioner's contention that the Hearing Officer improperly denied access to a videotape of the incident, where the only evidence in the record indicates that no such recording was ever made (see Matter of Vigliotti v Duncan, 10 AD3d 776, 777 [2004], lv dismissed 4 NY3d 738 [2004]).

Cardona, P.J., Spain, Lahtinen, Kavanagh and Garry, JJ., concur.

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

20100923

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