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In the Matter of John Lau v. Dale Artus

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


February 3, 2011

IN THE MATTER OF JOHN LAU, PETITIONER,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

Decided and Entered: February 3, 2011

MEMORANDUM AND JUDGMENT

Calendar Date: December 16, 2010

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was being escorted with 34 other inmates to the recreation yard when a fight broke out between two of the inmates. The inmates were given several direct orders to turn and face the wall, but instead participated in an organized effort to prevent staff from responding to the fight. After petitioner was identified from the block yard list, he was served with a misbehavior report charging him with refusing a direct order, interfering with staff, participating in an organized stoppage and failing to follow staff direction. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and the determination was upheld upon administrative review. Thereafter, petitioner commenced this CPLR article 78 proceeding to challenge the determination.

We confirm. The misbehavior report and the testimony of its author, a correction officer involved in the incident, provide substantial evidence to support the determination of guilt (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Hernandez v Bezio, 73 AD3d 1406, 1407 [2010]). Petitioner's testimony that he followed orders by facing the wall and was not among those inmates who obstructed the officers raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Reid v Fischer, 78 AD3d 1400, 1400 [2010]; Matter of Wahhab v Fischer, 77 AD3d 996 [2010]).

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110203

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