Opinion
2012-12-13
In the Matter of James LEWIS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Lewis, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
James Lewis, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., SPAIN, MALONE JR., GARRY and EGAN JR., JJ.
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 Superintendent of Bare Hill Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was issued a misbehavior report charging him with refusing a direct order. The charge arose out of an incident wherein the commissary clerk asked petitioner to report to work and, instead of reporting immediately, petitioner remained outside to finish smoking a cigarette. Following a tier II disciplinary hearing, petitioner was found guilty of the charge. This determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
The misbehavior report, together with the testimony of the commissary clerk who authored it, provide substantial evidence supporting the determination of guilt ( see Matter of White v. Fischer, 87 A.D.3d 1249, 1250, 930 N.Y.S.2d 306 [2011];Matter of Brown v. Taylor, 62 A.D.3d 1230, 1230, 882 N.Y.S.2d 321 [2009] ). To the extent that petitioner's version of events differed from that set forth by the commissary clerk and raised a retaliation defense, such differences presented a credibility issue for the Hearing Officer to resolve ( see Matter of White v. Fischer, 87 A.D.3d at 1250, 930 N.Y.S.2d 306;Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 [2011];Matter of Brown v. Taylor, 62 A.D.3d at 1231, 882 N.Y.S.2d 321). With respect to the retaliation defense, the Hearing Officer denied petitioner's initial request to call one civilian and three inmate witnesses. However, after the author of the misbehavior report testified and denied that she threatened petitioner the day before, the Hearing Officer granted petitioner's subsequent request to call the civilian witness to challenge that testimony. Upon the conclusion of that testimony, the Hearing Officer asked petitioner if he had any more testimony to offer, to which he replied he did not. Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer's inquiry, petitioner cannot now complain ( see Matter of Dillard v. Fischer, 98 A.D.3d 761, 762, 949 N.Y.S.2d 539 [2012] ). Finally, petitioner's argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing ( see Matter of Allison v. Prack, 95 A.D.3d 1569, 1570, 944 N.Y.S.2d 708 [2012];Matter of Coleman v. Fischer, 87 A.D.3d at 779, 928 N.Y.S.2d 153).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.