Calendar Date: September 29, 2010
Before: Cardona, P.J., Spain, Lahtinen, Stein and Garry, 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.
Petitioner, a prison inmate, was served with a misbehavior report alleging various disciplinary infractions after he engaged in a fight with another inmate and, after ignoring several direct orders to cease, the two inmates had to be separated by force. Following a tier III disciplinary hearing, petitioner was found guilty of assaulting an inmate, engaging in violent conduct and refusing a direct order. That determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, supporting documentation and testimony of one of the correction officers involved in the incident provide substantial evidence to support the determination of guilt (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361 , lv denied 15 NY3d 702 ; Matter of Lozada v Cook, 67 AD3d 1232, 1233 , lv denied 14 NY3d 706 ). Petitioner's contention that he was defending himself as the victim of an attack by several gang members raised a question of credibility to be resolved by the Hearing Officer (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 ; Matter of Hernandez v Bezio, 73 AD3d 1406, 1407 ). Petitioner's claim that he was denied a videotape of the incident has no merit, as the record establishes that no videotape existed (see Matter of Parker v Fischer, 70 AD3d 1086, 1087 ; Matter of Chavis v Goord, 58 AD3d 954, 955 ). Finally, we disagree that the penalty assessed was excessive as it was not so severe as to shock one's sense of fairness (see Matter of Giap v Fischer, 69 AD3d 1079, 1080 ).
We have examined petitioner's remaining contentions and find them to be without merit.
Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
© 1992-2010 VersusLaw ...