State of New York Supreme Court, Appellate Division Third Judicial Department
June 23, 2011
IN THE MATTER OF ANTHONY COOPER, PETITIONER,
ALBERT PRACK, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: May 11, 2011
Before: Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
After he was removed from his cell for visitation, petitioner was ordered to stand facing the windows near a gate while correction officers were getting other inmates out of their cells for visitation. When one of those inmates approached petitioner, petitioner turned to kick the inmate but the inmate blocked the kick with his hands. As a result, petitioner was charged in a misbehavior report with refusing a direct order, engaging in violent conduct and fighting. Following a tier III disciplinary hearing, he was found guilty of the former two charges but not the latter. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 ; Matter of Larkins v Goord, 27 AD3d 810 ). Petitioner's denial of any misconduct and claim that the misbehavior report was fabricated presented a credibility issue for the Hearing Officer to resolve (see Matter of McLaughlin v Fischer, 69 AD3d at 1072; Matter of Lamage v Goord, 285 AD2d 724, 724 , appeal dismissed 97 NY2d 639 ). In addition, there is nothing in the record to suggest that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Nelson v Goord, 33 AD3d 1135, 1136 ). Petitioner's remaining contentions, to the extent that they are properly before us, have been considered and are unavailing.
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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