State of New York Supreme Court, Appellate Division Third Judicial Department
March 22, 2012
IN THE MATTER OF JAMES NELSON, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: January 23, 2012
Before: Mercure, Acting P.J., Peters, Rose, Kavanagh and Stein, 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 was observed by a correction officer engaged in a fight with another inmate and petitioner continued fighting despite several direct orders to cease. As a result, he was charged in a misbehavior report with assault, fighting, violent conduct and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges. After the determination was upheld upon administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, supporting documentation and testimony of the correction officer who witnessed petitioner's participation in the fight provide substantial evidence to support the determination of guilt (see Matter of Barnes v Prack, 87 AD3d 1216, 1216 ; Matter of Machicote v Bezio, 87 AD3d 763, 763 ). Testimony by petitioner and his inmate witness that petitioner had been misidentified raised a credibility question to be resolved by the Hearing Officer (see Matter of Kalwasinski v Fischer, 87 AD3d 1207, 1208 ; Matter of Barnes v Prack, 87 AD3d at 1217). Finally, the record demonstrates that the finding of guilt was premised upon the evidence presented at the hearing, rather than alleged hearing officer bias (see Matter of Polite v Fischer, 87 AD3d 1212, 1212 ).
Mercure, Acting P.J., Peters, Rose, Kavanagh and Stein, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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