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In the Matter of David v. Darwin Laclair

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


November 23, 2011

IN THE MATTER OF DAVID REYNOLDS, PETITIONER,
v.
DARWIN LACLAIR, AS SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Mercure, J.P., Spain, Rose, Malone Jr. 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 Superintendent of Franklin Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

After an inmate informed a correction officer that he had been involved in a physical altercation with petitioner, petitioner was charged in a misbehavior report with fighting and violent conduct. Following a tier II disciplinary hearing, he was found guilty of those charges and that determination was upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, investigative and medical reports and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Boggs v Martuscello, 84 AD3d 1625, 1626 [2011]; Matter of Correnti v Fischer, 83 AD3d 1354, 1354 [2011]). Petitioner's contentions that a correction counselor lied during his testimony and that a statement attributed to him was actually uttered by someone else raised credibility issues to be resolved by the Hearing Officer (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011], lv denied 17 NY3d 711 [2011]; Matter of Williams v Fischer, 84 AD3d 1661, 1662 [2011]). We find that petitioner's right to call an inmate witness was adequately protected inasmuch as the witness signed a refusal form and the Hearing Officer personally interviewed him, although without success, in an attempt to ascertain why he would not testify (see Matter of Tafari v Fischer, 82 AD3d 1430, 1430 [2011], lv denied 17 NY3d 702 [2011]; Matter of Reynoso v Fischer, 73 AD3d 1315, 1316 [2010]). Finally, a review of the record establishes that the determination flowed from the evidence presented at the hearing, rather than any alleged hearing officer bias (see Matter of Faublas v Rock, 85 AD3d 1519, 1520 [2011]).

We have examined petitioner's remaining claims and find them to be unpreserved or without merit.

Mercure, J.P., Spain, Rose, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111123

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