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Cummings v. Fischer

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


November 18, 2010

IN THE MATTER OF HAROLD CUMMINGS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: September 29, 2010

Before: Peters, J.P., Lahtinen, Malone Jr., Stein 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.

Following an investigation, petitioner, a prison inmate, received a misbehavior report charging him with assaulting an inmate and violent conduct based on an altercation with a laundry porter. A tier III disciplinary hearing was held, after which petitioner was found guilty of violent conduct, but not guilty of assaulting an inmate. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and the testimony from both the authoring correction officer and the confidential informant provide substantial evidence to support the determination of guilt (see Matter of Monroe v Fischer, 73 AD3d 1304 [2010]; Matter of Sanders v Haggett, 72 AD3d 1372, 1372-1373 [2010]). Petitioner's contention that he could not have been in the area of the incident at the time it was alleged to have occurred raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Williams v Fischer, 75 AD3d 706 [2010], lv granted ___ NY3d ___ [Oct. 26, 2010]; Matter of Mitchell v Bezio, 69 AD3d 1281, 1281-1282 [2010]).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur.

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

20101118

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