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Wahhab v. Fischer

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


October 7, 2010

IN THE MATTER OF YASEEN WAHHAB, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Cardona, P.J., Spain, Malone Jr., Kavanagh 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 certain prison disciplinary rules.

A correction officer had cleared the count of the inmates in his unit and was preparing to call it into the watch commander when he noticed that a group of about five inmates, including petitioner, was congregated in front of one cell. He ordered them to disburse and was making a note of this when petitioner confronted him in an angry manner demanding to know why he was writing down their cube numbers. Petitioner ignored the officer's directives to leave the area until finally the officer advised petitioner that he was giving him a direct order to leave. As a result of this incident, petitioner was charged in a misbehavior report with delaying the count, interfering with an employee and refusing a direct order. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Valentine v Goord, 18 AD3d 997, 998 [2005], lv dismissed 5 NY3d 816 [2005]; Matter of Wigfall v Goord, 16 AD3d 791, 791 [2005]). Petitioner's contrary testimony and that of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Jones v Fischer, 69 AD3d 1065, 1066 [2010]; Matter of Telford v Fischer, 67 AD3d 1109, 1110 [2009]). Contrary to petitioner's claim, the record does not reveal that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Gimenez v Artus, 63 AD3d 1461, 1462 [2009]; Matter of Sweet v Woods, 60 AD3d 1183 [2009]). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.

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

20101007

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