Opinion
2014-06-19
In the Matter of Shane HYATT, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Shane Hyatt, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Shane Hyatt, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this proceeding challenging a tier III disciplinary determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, assault on staff and interference with an employee resulting from petitioner kicking a correction officer in the knee. Contrary to petitioner's contention, substantial evidence in the form of the misbehavior report, related documentary evidence and videotape support the determination finding petitioner guilty of the charges ( see Matter of Lopez v. Fischer, 115 A.D.3d 1098, 1098, 982 N.Y.S.2d 195 [2014];Matter of Barnes v. Prack, 87 A.D.3d 1251, 1252, 930 N.Y.S.2d 308 [2011] ). Any alleged inconsistencies in the evidence presented created a credibility issue for the Hearing Officer to resolve ( see Matter of Jones v. Goord, 50 A.D.3d 1427, 1427, 856 N.Y.S.2d 700 [2008] ). To the extent that petitioner asserts that the author of the misbehavior report should have been called to testify at the hearing, he raises this issue for the first time on appeal and it is, therefore, not preserved for our review ( see Matter of Davis v. Bezio, 74 A.D.3d 1615, 1615, 902 N.Y.S.2d 436 [2010];Matter of Woods v. Leclaire, 50 A.D.3d 1286, 1287, 855 N.Y.S.2d 717 [2008] ). Petitioner's remaining contentions are unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., STEIN, McCARTHY, ROSE and EGAN JR., JJ., concur.