Opinion
2013-05-23
In the Matter of Valentin RIVERA, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Valentin Rivera, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Valentin Rivera, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous 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 charged in a misbehavior report with violations of various prison disciplinary rules stemming from his involvement in an altercation with other inmates. He pleaded guilty to several charges and, following a tier III disciplinary hearing, was found guilty of assault and weapon possession. While the penalty imposed was modified upon administrative review, the determination of guilt was otherwise undisturbed, leading petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, the testimony of individuals who witnessed or participated in the fight and the documentary evidence presented at the hearing provide substantial evidence to support the determination of guilt ( see Matter of Jones v. Fischer, 94 A.D.3d 1298, 1298, 942 N.Y.S.2d 674 [2012];Matter of Vassell v. Goord, 26 A.D.3d 547, 547, 807 N.Y.S.2d 737 [2006] ). The victim's testimony that petitioner had not used a weapon conflicted with that of others who observed the fight and, accordingly, created a credibility issue to be resolved by the Hearing Officer ( see Matter of Griffith v. Selsky, 53 A.D.3d 884, 884, 862 N.Y.S.2d 622 [2008];Matter of Vassell v. Goord, 26 A.D.3d at 547–548, 807 N.Y.S.2d 737). Petitioner's remaining claims were not raised upon his administrative appeal and are unpreserved for our review ( see Matter of Wigfall v. Department of Correctional Servs., 100 A.D.3d 1211, 1213, 954 N.Y.S.2d 274 [2012];Matter of Argentina v. Fischer, 98 A.D.3d 768, 768–769, 949 N.Y.S.2d 824 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.