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In re Leslie

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of REGINALD D. LESLIE, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: May 6, 2013

Reginald D. Leslie, Dannemora, petitioner pro se.

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

Before: Peters, P.J., Rose, Lahtinen and Garry, 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.

A fight broke out among 26 inmates in the yard. During the melee, petitioner was observed throwing punches at an unidentified inmate and ignoring orders to cease such activity. As a result, he was charged in a misbehavior report with engaging in violent conduct, refusing a direct order, creating a disturbance and fighting. 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 of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of McNeil v Fischer, 95 A.D.3d 1520, 1521 [2012]; Matter of Mahon v Goord, 20 A.D.3d 837, 837 [2005], appeal dismissed 5 N.Y.3d 879 [2005]). The contrary testimony of petitioner's inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Barnes v Prack, 87 A.D.3d 1216, 1217 [2011]; Matter of Harvey v Woods, 53 A.D.3d 988, 988 [2008]). Petitioner's remaining contentions have not been preserved for our review due to his failure to either raise them at the hearing or in his administrative appeal.

Peters, P.J., Rose, Lahtinen and Garry, JJ., concur.

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


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