State of New York Supreme Court, Appellate Division Third Judicial Department
December 13, 2012
IN THE MATTER OF JAMES LEWIS, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: October 29, 2012
Before: Lahtinen, J.P., Spain, Malone Jr., Garry 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 Superintendent of Bare Hill Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was issued a misbehavior report charging him with refusing a direct order. The charge arose out of an incident wherein the commissary clerk asked petitioner to report to work and, instead of reporting immediately, petitioner remained outside to finish smoking a cigarette. Following a tier II disciplinary hearing, petitioner was found guilty of the charge. This determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
The misbehavior report, together with the testimony of the commissary clerk who authored it, provide substantial evidence supporting the determination of guilt (see Matter of White v Fischer, 87 AD3d 1249, 1250 ; Matter of Brown v Taylor, 62 AD3d 1230, 1230 ). To the extent that petitioner's version of events differed from that set forth by the commissary clerk and raised a retaliation defense, such differences presented a credibility issue for the Hearing Officer to resolve (see Matter of White v Fischer, 87 AD3d at 1250; Matter of Coleman v Fischer, 87 AD3d 778, 779 ; Matter of Brown v Taylor, 62 AD3d at 1231). With respect to the retaliation defense, the Hearing Officer denied petitioner's initial request to call one civilian and three inmate witnesses. However, after the author of the misbehavior report testified and denied that she threatened petitioner the day before, the Hearing Officer granted petitioner's subsequent request to call the civilian witness to challenge that testimony. Upon the conclusion of that testimony, the Hearing Officer asked petitioner if he had any more testimony to offer, to which he replied he did not. Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer's inquiry, petitioner cannot now complain (see Matter of Dillard v Fischer, 98 AD3d 761, 762 ). Finally, petitioner's argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing (see Matter of Allison v Prack, 95 AD3d 1569, 1570 ; Matter of Coleman v Fischer, 87 AD3d at 779).
Lahtinen, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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