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In the Matter of Tyrone Williams v. Brian Fischer

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


January 24, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: December 17, 2012

Before: Peters, P.J., Lahtinen, Spain, 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.

When correction officers approached petitioner's cell to conduct a search, they observed petitioner grab an unknown object and flush it down the toilet. Petitioner was directed to exit his cell, but he refused. Instead, he turned toward the officers with a clenched fist, at which point they used force to avert an assault. As a result, petitioner was charged in a misbehavior report with attempting to assault staff, engaging in violent conduct, refusing a direct order and violating search and frisk procedures. Following a tier III disciplinary hearing, he was found guilty of all of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers involved in the incident, provide substantial evidence supporting the determination of guilt (see Matter of Martin v Fischer, 98 AD3d 774, 774 [2012]; Matter of Wright v Fischer, 98 AD3d 759, 759 [2012]). To the extent that petitioner and his inmate witnesses gave contrary testimony, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carrasco v Fischer, 96 AD3d 1315, 1316 [2012]; Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]). We have considered petitioner's remaining claims and find them either unpreserved for our review or lacking in merit.

Peters, P.J., Lahtinen, Spain, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130124

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