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In the Matter of Bernard Sorrentino v. Brian Fischer

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


December 6, 2012

IN THE MATTER OF BERNARD SORRENTINO, 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, 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.

While observing inmates in the north recreation yard, a correction officer noticed that petitioner was acting suspiciously and attempting to leave. After ordering petitioner to stop, the officer performed a court check and determined that petitioner was not supposed to be in that specific area. Petitioner protested, became verbally abusive and yelled profanities at the officer when directed to leave the area. As a result, he was charged in a misbehavior report with making threats, refusing a direct order, being out of place and engaging in verbal harassment. Following a tier III disciplinary hearing, petitioner was found guilty of all of the charges, except for making threats. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of correction officials familiar with the incident and the documentation establishing that petitioner's name was crossed off the list of individuals authorized to be in the area in question, provide substantial evidence supporting the determination of guilt (see Matter of Hemphill v Fischer, 94 AD3d 1309 [2012]; Matter of McGowan v Fischer, 88 AD3d 1038, 1038 [2011]). Petitioner's claim that the misbehavior report was written in retaliation for a past grievance that he had filed against the officer accompanying the officer who stopped him in the yard presented a credibility issue for the Hearing Officer to resolve (see Matter of White v Fischer, 87 AD3d 1249, 1250 [2011]; Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]).

Petitioner further contends that the misbehavior report was defective because the accompanying officer did not endorse it. However, inasmuch as this officer testified that he did not observe petitioner's behavior prior to being stopped or personally ascertain if petitioner was authorized to be in the area, he did not have personal knowledge of all of the facts providing the basis for the report (see Matter of Jones v Fischer, 94 AD3d 1298, 1298 [2012]; see also 7 NYCRR 251-3.1 [b]). In any event, given that petitioner was free to question this officer at the hearing, he was not prejudiced by the lack of the officer's endorsement (see Matter of McGowan v Fischer, 88 AD3d at 1039). Petitioner's remaining contentions have been considered and are either unpreserved for our review or are lacking in merit.

Peters, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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