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In the Matter of Kenneth Rouse v. Brian Fischer

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


April 19, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: February 21, 2012

Before: Mercure, J.P., Lahtinen, Kavanagh, 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 was charged in a misbehavior report with fighting, assaulting an inmate, possession of a weapon and violent conduct on the basis of information received from a confidential source implicating petitioner as the individual who cut another inmate with a "razor type weapon." Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon petitioner's administrative appeal, the fighting charge was dismissed, with all other charges affirmed, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report and confidential information reviewed by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Love v Prack, 89 AD3d 1307, 1308 [2011]). Significantly, "[i]nconsistencies in the testimony and petitioner's protestations of innocence raised questions of credibility that were within the province of the Hearing Officer to resolve" (Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]; see Matter of Williams v Fischer, 89 AD3d 1333, 1333 [2011]).

The remaining arguments, including petitioner's assertion of hearing officer bias, have been examined and found to be unpersuasive. Inasmuch as the record confirms that petitioner refused to attend the latter half of the disciplinary hearing and was warned of the consequences thereof, his claim that he was denied the right to attend or participate is lacking in merit (see Matter of Abreu v Bezio, 84 AD3d 1596, 1596 [2011], lv dismissed 17 NY3d 781 [2011], appeal dismissed 17 NY3d 915 [2011]).

Mercure, J.P, Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120419

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