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In the Matter of Claude Mays v. Brian Fischer

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


April 25, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: February 25, 2013

Before: Peters, P.J., Rose, Stein 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with creating a disturbance, stalking and interference with an employee after he was observed leaning out of a line waiting to go through a metal detector in order to stare at a female correction officer. After petitioner was overheard making an inappropriate remark, the ensuing disturbance delayed the security processing of inmates in the line. Petitioner was found guilty of all but the stalking charge at the conclusion of a tier III disciplinary hearing. That determination was affirmed upon petitioner's administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored the report, provide substantial evidence supporting the determination of guilt (see Matter of Amaker v Bezio, 98 AD3d 1146, 1146 [2012]; Matter of Shields v Fischer, 95 AD3d 1574, 1574 [2012]). While petitioner denied committing the conduct alleged in the report, this created a credibility issue for the Hearing Officer to resolve (see Matter of Spikes v Fischer, 100 AD3d 1231, 1231 [2012], lv denied ___ NY3d ___ [Mar. 26, 2013]).

Peters, P.J., Rose, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130425

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