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In the Matter of David A. Burr v. Brian Fischer

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


November 29, 2012

IN THE MATTER OF DAVID A. BURR, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Peters, P.J., Mercure, Spain, Malone Jr. and McCarthy, 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 assault on a staff member, violent conduct and refusing a direct order. The charges stemmed from an incident wherein petitioner slapped a sergeant during an interview in the sergeant's office regarding a complaint petitioner had filed. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty of 10 months in the special housing unit was imposed. This determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, use of force report and testimony of staff involved in the incident provide substantial evidence supporting the finding of guilt on each charge (see Matter of Carrasco v Fischer, 96 AD3d 1315, 1316 [2012]; Matter of Irwin v Fischer, 85 AD3d 1336, 1337 [2011], lv denied 17 NY3d 712 [2011]). Petitioner's conflicting version of events presented a credibility issue for the Hearing Officer to resolve (see Matter of Cornelius v Fischer, 98 AD3d 779, 780 [2012]; Matter of Carrasco v Fischer, 96 AD3d at 1316).

With regard to petitioner's numerous procedural complaints, the record confirms that petitioner received adequate employee assistance, and the hearing was commenced and completed in accordance with appropriate extensions (see Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]; Matter of Bernier v Goord, 3 AD3d 803, 803 [2004]). Petitioner's complaints regarding the Hearing Officer's denial of certain witnesses and documentary evidence are not substantiated by the record and, inasmuch as petitioner was present for the entire hearing and was only excluded from the dispositional phase after becoming disruptive, we find no error (see Matter of Carrasco v Fischer, 96 AD3d at 1316; Matter of Williams v Bezio, 79 AD3d 1556, 1557 [2010], lv denied 16 NY3d 710 [2011]). Petitioner's remaining contentions have been reviewed and found to be without merit.

Peters, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121129

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