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In the Matter of Robert Johnson v. Brian Fischer

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


May 19, 2011

IN THE MATTER OF ROBERT JOHNSON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Mercure, J.P., Peters, Lahtinen, Stein 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.

An inmate reported to correction officials that petitioner forced him to engage in sexual acts. As a result, petitioner was charged in a misbehavior report with soliciting sexual acts and having physical contact with another inmate. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

The misbehavior report, together with the testimony of the victim of the sexual assault, provide substantial evidence supporting the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 1183, 1183 [2008]; Matter of Howard v Goord, 42 AD3d 867 [2007]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Retamozzo v New York State Dept. of Correctional Servs., 31 AD3d 1083, 1084 [2006]; Matter of Cunningham v Selsky, 29 AD3d 1254, 1255 [2006]). Therefore, the determination must be confirmed.

Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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