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In the Matter of Victor Hardy v. J.T. Smith

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


August 4, 2011

IN THE MATTER OF VICTOR HARDY, PETITIONER,
v.
J.T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 8, 2011

Before: Mercure, J.P., Rose, Lahtinen, Stein and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Based upon an investigation, it was determined that petitioner punched another inmate in the back of the head and he was charged in a misbehavior report with violent conduct. Petitioner was found guilty of that charge after a tier II disciplinary hearing and that determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, along with the testimony of the victim and the correction officer who authored the misbehavior report, provide substantial evidence to support the determination of guilt (see Matter of France v Bezio, 78 AD3d 1357, 1357 [2010]; Matter of McDaniels v Bezio, 76 AD3d 1129, 1129 [2010]). Petitioner's protestations of innocence, his theory that he was being accused in retaliation and the testimony of his inmate witnesses presented questions of credibility to be resolved by the Hearing Officer (see Matter of Lovett v Smith, 80 AD3d 1039, 1040 [2011]; Matter of Perez v Fischer, 69 AD3d 1279, 1279-1280 [2010]). Turning to petitioner's procedural contentions, even if the Hearing Officer erred in failing to disclose the victim's medical records, such error was harmless in that they were not considered in making the determination (see Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872-873 [2006]; Matter of Huggins v Goord, 28 AD3d 891, 891-892 [2006]). Finally, our review of the record satisfies us that the disposition of guilt resulted from the evidence presented, rather than any alleged hearing officer bias (see Matter of Weems v Fischer, 82 AD3d 1454, 1456 [2011]; Matter of Mayo v Fischer, 82 AD3d 1421, 1422 [2011], lv denied ___ NY3d ___ [June 9, 2011]).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

Mercure, J.P., Rose, Lahtinen, 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

20110804

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