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In re Toliver

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of MICHEL TOLIVER, Petitioner,
v.
COMMISSIONER OF NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

Calendar Date: May 6, 2013

Michel Toliver, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondents.

Before: Stein, J.P., McCarthy, 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 Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination rendered upon two misbehavior reports. The first report alleged that petitioner had refused a direct order to end his shower; the second report stemmed from his continued uncooperative behavior upon returning to his cell and charged him with refusing a direct order, creating a disturbance, interfering with an employee and committing a movement regulation violation. Following a tier II disciplinary hearing, petitioner was found guilty of all charges and the determination was affirmed upon administrative appeal.

We confirm. The misbehavior reports, hearing testimony and video of the incidents provide substantial evidence to support the determination (see Matter of Amaker v Bezio, 98 A.D.3d 1146, 1146 [2012]; Matter of Brown v Goord, 17 A.D.3d 952, 952 [2005]), and petitioner's retaliation defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Brown v Goord, 17 A.D.3d at 952). The Hearing Officer imposed a permissible penalty and, contrary to petitioner's assertion, he was not entitled to credit toward his administrative penalty for the period of time that he was confined prior to the hearing (see Matter of Mastropietro v New York State Dept. of Corrections, 52 A.D.3d 1125, 1126 [2008], lv denied 11 N.Y.3d 711 [2008]). Petitioner's remaining contentions have been examined and found to lack merit.

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

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


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