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In re Watt

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of MICHAEL WATT, Petitioner,
v.
D. VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: May 6, 2013

Michael Watt, Albion, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.

Before: Peters, P.J., Stein, McCarthy 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.

Petitioner was charged in a misbehavior report with attempted assault, violent conduct and refusing a frisk. Following a tier III disciplinary hearing, he was found guilty of violent conduct and refusing a frisk. The penalty was modified upon administrative review, but the determination was otherwise upheld, prompting petitioner to commence this CPLR article 78 proceeding, which was transferred to this Court.

The misbehavior report and related documentation, together with the testimony of correction officers involved in the incident, constitute substantial evidence supporting the determination that during a random pat frisk by a correction officer, petitioner berated the officer with a racial slur and attempted to kick him (see Matter of Williams v Fischer, 102 A.D.3d 1044, 1044 [2013]; Matter of Moreno v Fischer, 100 A.D.3d 1167, 1167 [2012]). Petitioner's conflicting version of events created a credibility question for the Hearing Officer to resolve (see Matter of Williams v Fischer, 102 A.D.3d at 1044). The record reflects that petitioner received adequate employee assistance (see Matter of Booker v Fischer, 102 A.D.3d 1045, 1045 [2013]). Petitioner's remaining contentions have been considered and found to lack merit.

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

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


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