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In re Fowler

Supreme Court of New York, Third Department

May 23, 2013

In the Matter of JAMARR FOWLER, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: April 3, 2013

Jamarr Fowler, Wallkill, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Peters, P.J., Stein, Garry and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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 escorting a group of inmates back from the gym, a correction officer noticed a bulge in the top of petitioner's right sock. After the officer ordered him to empty his pockets and place his items on a nearby heater, petitioner reached for his sock. In response, the officer forced him against the wall causing petitioner to drop a razor-type weapon that he had retrieved. Other correction officers assisted and a struggle ensued during which one officer was struck in the forehead by petitioner's right elbow. Petitioner ignored directives to stop resisting. The officers ultimately gained control of petitioner, placed him in handcuffs and recovered the weapon. Petitioner was later charged in a misbehavior report with assaulting staff, refusing a direct order, possessing a weapon, engaging in violent conduct and violating frisk procedures. Following a rehearing of a tier III disciplinary proceeding, petitioner was found guilty of all of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of McPherson v Lee, 101 A.D.3d 1330, 1331 [2012]; Matter of Moreno v Fischer, 100 A.D.3d 1167, 1167 [2012]). Petitioner's claim that the misbehavior report was written in retaliation for grievances he had filed against certain correction officers in B block presented a credibility issue for the Hearing Officer to resolve (see Matter of McPherson v Lee, 101 A.D.3d at 1331; Matter of White v Fischer, 87 A.D.3d 1249, 1250 [2011]).

In addition, we find no merit to petitioner's contention that he was improperly denied witnesses. As for the two unnamed correction officers that petitioner claims were present at the time of the incident, the Hearing Officer exercised diligent efforts to identify them and eventually interviewed the two individuals who petitioner described (see Matter of Jones v Bellamy, 80 A.D.3d 1029, 1030 [2011]). They indicated that they did not have personal knowledge of the incident nor did the Deputy of Administration, who petitioner also requested as a witness. Consequently, the testimony of these witnesses was irrelevant to the charges (see Matter of Tafari v Fischer, 94 A.D.3d 1324, 1325 [2012], lv denied 19 N.Y.3d 807 [2012]; Matter of Pante v Goord, 73 A.D.3d 1394, 1395 [2010]). Further, we find nothing in the record to indicate that petitioner was denied a fair and impartial hearing or that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Fragosa v Miller, 95 A.D.3d 1524, 1525 [2012]; Matter of Gonzalez v Fischer, 93 A.D.3d 1049, 1049 [2012], lv denied 19 N.Y.3d 806 [2012]). Petitioner's remaining arguments have been considered and have been found to be unavailing. Therefore, we find no reason to disturb the determination of guilt.

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

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


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