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In re Demeo

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of FRANK DEMEO, Petitioner,
v.
DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Calendar Date: May 6, 2013

Frank Demeo, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Stein and Spain, 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with engaging in violent conduct, fighting and creating a disturbance. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Lamage v Fischer, 100 A.D.3d 1176, 1176 [2012]; Matter of Ramos v Selsky, 48 A.D.3d 863, 864 [2008]). Although petitioner maintained that the other inmate was the aggressor and he did not strike the inmate, substantial evidence in the record supports the finding that petitioner "engage[d] in fighting" in violation of prison rules (7 NYCRR 270.2 [B] [1] [iv]; see Matter of Ortiz v Goord, 298 A.D.2d 736, 737 [2002]; Matter of Kelly v Goord, 251 A.D.2d 803, 803-804 [1998]). Therefore, we find no reason to disturb the determination under review.

Peters, P.J., Lahtinen, Stein and Spain, JJ., concur.

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


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