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Hernandez v. Bezio

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


September 30, 2010

IN THE MATTER OF ALEJANDRO HERNANDEZ, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Peters, J.P., Spain, Lahtinen, McCarthy and Egan Jr., 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After several correction officers witnessed petitioner engaged in a fight with another inmate, he was served with a misbehavior report charging him with fighting, creating a disturbance and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges and that determination was affirmed on administrative review. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, related documents and testimony of the correction officers who witnessed the altercation provide substantial evidence to support the determination of guilt (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]; Matter of Fareedullah v Fischer, 64 AD3d 1024, 1025 [2009], lv denied 13 NY3d 713 [2009]). Petitioner's contention that he was defending himself from attack raised a question of credibility to be determined by the Hearing Officer (see Matter of Stone v Fischer, 62 AD3d 1064, 1065 [2009]; Matter of Bowers v Venettozzi, 59 AD3d 793, 793 [2009]). Petitioner's procedural contentions, including that he was denied witnesses and received insufficient assistance, are unpreserved by his failure to raise them during the hearing, when they could have been addressed (see Matter of Joseph v Fischer, 67 AD3d 1103, 1104 [2009]; Matter of Hamilton v Goord, 32 AD3d 642, 643 [2006], lv denied 7 NY3d 715 [2006]).

We have examined petitioner's remaining contentions and find them to be without merit.

Peters, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur.

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

20100930

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