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In the Matter of Omar Williams v. Brian Fischer

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


February 9, 2012

IN THE MATTER OF OMAR WILLIAMS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Rose, J.P., Spain, Kavanagh, Stein and Egan Jr., 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.

A correction officer supervising the clean up in the mess hall noticed that petitioner and a number of other inmates had failed to complete their work assignments. When the officer instructed petitioner to wash the table arms in the dining area, he refused. He then proceeded to encourage the inmates around him to refuse to do their work as well. As a result, petitioner was charged in a misbehavior report with refusing a direct order, creating a disturbance and inciting a demonstration. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, upon reviewing the record, we do not find that the minor gaps in the hearing tape or transcript preclude meaningful review (see Matter of Machicote v Bezio, 87 AD3d 763, 764 [2011]; Matter of Smith v Martuscello, 85 AD3d 1516, 1516 [2011], lv denied 17 NY3d 715 [2011]). Moreover, the detailed misbehavior report provides substantial evidence supporting the determination of guilt (see Matter of Darshan v Bango, 83 AD3d 1302 [2011]; Matter of Tafari v Selsky, 38 AD3d 1079, 1079 [2007], lv denied 8 NY3d 816 [2007]). Petitioner's claim that the misbehavior report was fabricated and the contrary version of events related by him and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v Fischer, 87 AD3d 778, 779 [2011]; Matter of Johnson v Goord, 42 AD3d 626, 627 [2007]). Petitioner's remaining contentions have not been preserved for our review.

Rose, J.P., Spain, Kavanagh, 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

20120209

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