Opinion
2012-04-19
In the Matter of Kenneth ROUSE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Kenneth Rouse, Malone, petitioner pro se. *385 Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Kenneth Rouse, Malone, petitioner pro se. *385 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 charged in a misbehavior report with fighting, assaulting an inmate, possession of a weapon and violent conduct on the basis of information received from a confidential source implicating petitioner as the individual who cut another inmate with a “razor type weapon.” Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon petitioner's administrative appeal, the fighting charge was dismissed, with all other charges affirmed, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report and confidential information reviewed by the Hearing Officer provide substantial evidence to support the determination of guilt ( see Matter of Gomez v. Fischer, 89 A.D.3d 1341, 1341, 934 N.Y.S.2d 521 [2011]; Matter of Love v. Prack, 89 A.D.3d 1307, 1308, 932 N.Y.S.2d 595 [2011] ). Significantly, “[i]nconsistencies in the testimony and petitioner's protestations of innocence raised questions of credibility that were within the province of the Hearing Officer to resolve” ( Matter of Crenshaw v. Fischer, 89 A.D.3d 1343, 1344, 932 N.Y.S.2d 912 [2011]; see Matter of Williams v. Fischer, 89 A.D.3d 1333, 1333, 932 N.Y.S.2d 915 [2011] ).
The remaining arguments, including petitioner's assertion of hearing officer bias, have been examined and found to be unpersuasive. Inasmuch as the record confirms that petitioner refused to attend the latter half of the disciplinary hearing and was warned of the consequences thereof, his claim that he was denied the right to attend or participate is lacking in merit ( see Matter of Abreu v. Bezio, 84 A.D.3d 1596, 1596, 922 N.Y.S.2d 667 [2011], lv. dismissed 17 N.Y.3d 781, 929 N.Y.S.2d 81, 952 N.E.2d 1076 [2011], appeal dismissed 17 N.Y.3d 915, 934 N.Y.S.2d 368, 958 N.E.2d 546 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.