Opinion
2012-03-22
In the Matter of James NELSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Nelson, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
James Nelson, 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 was observed by a correction officer engaged in a fight with another inmate and petitioner continued fighting despite several direct orders to cease. As a result, he was charged in a misbehavior report with assault, fighting, violent conduct and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges. After the determination was upheld upon administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, supporting documentation and testimony of the correction officer who witnessed petitioner's participation in the fight provide substantial evidence to support the determination of guilt ( see Matter of Barnes v. Prack, 87 A.D.3d 1216, 1216, 930 N.Y.S.2d 291 [2011]; Matter of Machicote v. Bezio, 87 A.D.3d 763, 763, 928 N.Y.S.2d 382 [2011] ). Testimony by petitioner and his inmate witness that petitioner had been *498 misidentified raised a credibility question to be resolved by the Hearing Officer ( see Matter of Kalwasinski v. Fischer, 87 A.D.3d 1207, 1208, 929 N.Y.S.2d 777 [2011]; Matter of Barnes v. Prack, 87 A.D.3d at 1217, 930 N.Y.S.2d 291). Finally, the record demonstrates that the finding of guilt was premised upon the evidence presented at the hearing, rather than alleged hearing officer bias ( see Matter of Polite v. Fischer, 87 A.D.3d 1212, 1212, 929 N.Y.S.2d 782 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.