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In the Matter of Walter Byas v. Brian Fischer

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


April 18, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: February 25, 2013

Before: Peters, P.J., Mercure, Stein and Spain, 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.

We confirm the challenged determination finding petitioner guilty of violating the prison disciplinary rules prohibiting violent conduct, creating a disturbance, fighting and refusing a direct order. The misbehavior report and testimony of the correction officer who prepared it provide substantial evidence to support the determination; petitioner's contention that he was merely roughhousing and the minor inconsistencies between the misbehavior report and the officer's testimony presented credibility issues for the Hearing Officer to resolve (see Matter of Harris v Smith, 95 AD3d 1527, 1527 [2012]; Matter of Nelson v Fischer, 93 AD3d 1059, 1059 [2012]). Petitioner's further claims of procedural error have been considered and rejected.

Peters, P.J., Mercure, Stein and Spain, JJ., concur.

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

ENTER: Robert D. Mayberger Clerk of the Court

20130418

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