June 20, 2013
In the Matter of NORMAN ALLEN, Petitioner,
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
Calendar Date: May 6, 2013
Norman Allen, Ossining, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Before: Peters, P.J., Lahtinen, 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 the Superintendent of Wende Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
While a group of inmates were returning from the recreation yard to their cells, a correction officer observed petitioner engaged in a physical altercation with another inmate. The officer gave them several direct orders to stop fighting, which were ignored. Eventually, however, they stopped. Thereafter, petitioner was charged in a misbehavior report with fighting, refusing a direct order, creating a disturbance and engaging in violent conduct. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the determination of guilt with respect to that charge (see Matter of Toste v Fischer, 95 A.D.3d 1511, 1512 ; Matter of Nunez v Unger, 93 A.D.3d 986, 986 ). As for the remaining charges, the detailed misbehavior report provides substantial evidence of petitioner's guilt (see Matter of Walker v Bezio, 96 A.D.3d 1268 ; Matter of Encarnacion v Bellnier, 89 A.D.3d 1301, 1302 ). Although petitioner maintained that he was the victim of the assault and that the report was false, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamage v Fischer, 100 A.D.3d 1176, 1176 ; Matter of Roussopoulas v Cunningham, 76 A.D.3d 730, 731 ). Accordingly, we find no reason to disturb the determination of guilt.
Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.