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In the Matter of Michael v. Brian Fischer

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


September 29, 2011

IN THE MATTER OF MICHAEL ARGENTIERI, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Spain, J.P., Rose, Lahtinen, McCarthy and Garry, 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.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of causing a disturbance, urging a demonstration, interfering with an employee, harassment and refusing a direct order. We are not persuaded by petitioner's contention that the determination lacks substantial evidence support. The evidence presented at the hearing, including the misbehavior report and testimony from correction officers, an inmate witness and petitioner, provide ample support for the Hearing Officer's conclusion that petitioner's loud, disruptive behavior in the mess hall constituted a violation of the disciplinary rules charged.

Although petitioner presented testimony about the incident that was contrary to that of the correction officers, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Chiarappa v Fischer, 84 AD3d 1628 [2011]; Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]). We further find that the determination of petitioner's guilt resulted from the evidence presented rather than any alleged hearing officer bias (see Matter of Green v Bradt, 79 AD3d 1566, 1567 [2010], lv denied 16 NY3d 709 [2011]).

Petitioner's remaining contentions, to the extent that they are preserved for our review, have been considered and found to be without merit.

Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110929

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