Opinion
2014-04-24
In the Matter of Colin FERGUSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Colin Ferguson, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Colin Ferguson, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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 respondentwhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit making threats, engaging in conduct involving the threat of violence and conspiring to riot after a correction officer overheard petitioner encouraging inmates to riot and kill prison guards with the use of weapons. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal with a modification of the penalty imposed. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, videotape and testimony at the hearing provide substantial evidence to support the determination of guilt ( see Matter of Vicente v. New York State Dept. of Corr. & Community Supervision, 107 A.D.3d 1203, 1203, 966 N.Y.S.2d 705 [2013] ). Petitioner's denial that he made any threatening remarks created a credibility issue for the Hearing Officer to resolve ( see Matter of Cicio v. Fischer, 100 A.D.3d 1226, 1227, 953 N.Y.S.2d 741 [2012] ). Furthermore, the record does not support petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Guillory v. Fischer, 110 A.D.3d 1426, 1427, 973 N.Y.S.2d 894 [2013] ).
We are unpersuaded by petitioner's contention that the hearing transcript was altered or that meaningful review of the hearing is precluded ( see Matter of Taylor v. Fischer, 74 A.D.3d 1677, 1677–1678, 906 N.Y.S.2d 112 [2010] ). We have examined petitioner's remaining contentions and find that they are either unpreserved or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., McCARTHY, ROSE and EGAN JR., JJ., concur.