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In the Matter of Damian v. Brian Fischer

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


June 23, 2011

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

MEMORANDUM AND JUDGMENT

Calendar Date: May 11, 2011

Before: Peters, J.P., Rose, 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 a prison disciplinary rule.

After hearing a loud banging sound, a correction officer proceeded to petitioner's cell where he observed food on the cell bars and floor leading him to conclude that petitioner had thrown his food tray. As a result, petitioner was charged in a misbehavior report with committing an unhygienic act. He was found guilty of the charge 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 the correction officer who prepared it, provide substantial evidence supporting the determination of guilt (see Matter of Billue v Goord, 28 AD3d 845, 846 [2006]; Matter of Wigfall v Goord, 16 AD3d 791, 791 [2005]). Petitioner's exculpatory testimony that he spilled the food tray while involved in a struggle with the inmate porter who delivered it presented a credibility issue for the Hearing Officer to resolve (see Matter of Billue v Goord, 28 AD3d at 846; Matter of Headley v Goord, 289 AD2d 622, 623 [2001]). Accordingly, we find no reason to disturb the determination of guilt.

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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