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In the Matter of Douglas G. Payne Iii v. Correction Officer Mark

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


September 20, 2012

IN THE MATTER OF DOUGLAS G. PAYNE III, PETITIONER,
v.
CORRECTION OFFICER MARK CORCIMIGLIA ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: July 30, 2012

Before: Peters, P.J., Lahtinen, 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner refused to comply with a correction officer's order to submit to a pat frisk and yelled obscenities at the officer. He then attempted to strike the officer, but was restrained. As a result, he was charged in a misbehavior report with refusing a direct order, attempting to assault staff and engaging in violent conduct. 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. The detailed misbehavior report and related documentation, together with the testimony of the correction officer who authored the misbehavior report, provide substantial evidence supporting the determination of guilt (see Matter of Toste v Fischer, 95 AD3d 1511, 1512 [2012]; Matter of Jones v Fischer, 94 AD3d 1298, 1298 [2012]). Petitioner's testimony that he did not resist the pat frisk and that it was he who was assaulted by correction officers presented a credibility issue for the Hearing Officer to resolve (see Matter of Sealey v Bezio, 95 AD3d 1577, 1578 [2012]; Matter of Hemphill v Fischer, 94 AD3d 1309, 1309 [2012]). Petitioner's remaining contentions have not been preserved for our review.

Peters, P.J., Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur.

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

Robert D. Mayberger Clerk of the Court

ENTER:

20120920

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