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In the Matter of Edwin Garcia v. Lieutenant M. Bertone

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


January 26, 2012

IN THE MATTER OF EDWIN GARCIA, PETITIONER,
v.
LIEUTENANT M. BERTONE, AS DISCIPLINARY HEARING OFFICER, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Peters, J.P., Rose, Kavanagh, McCarthy 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 the Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner began arguing with another inmate and ignored a correction officer's order to stop until after a physical altercation ensued. As a result, petitioner was charged in a misbehavior report with fighting and refusing a direct order. He was found guilty of the charges following a tier II 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 its author, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). While petitioner stated that he did not hear the correction officer's initial order due to his hearing impairment and that he acted in self-defense, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]). Petitioner's remaining contentions have not been preserved for our review or are lacking in merit.

Peters, J.P., Rose, Kavanagh, McCarthy and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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