Opinion
2013-07-11
In the Matter of Roy TARBELL, Petitioner, v. Captain LAMORA, Respondent.
Roy Tarbell, Cape Vincent, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Roy Tarbell, Cape Vincent, 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 Franklin County) to review a determination of the Superintendent of Franklin Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with failing to comply with a direct order, tampering with an electric device, possession of an altered item and a safety hazard after a sergeant discovered a fan that was without its front plate in petitioner's cell one day after she directed the entire housing unit to properly dispose of such items immediately. Following a tier II prison disciplinary hearing, petitioner was found guilty of all the charges except tampering with an electric device. The determination was administratively*413affirmed and this CPLR article 78 proceeding ensued.
We find that the misbehavior report and the hearing testimony of the sergeant who authored it provide substantial evidence to support the determination ( see Matter of Vigliotti v. Bell, 52 A.D.3d 1064, 1064, 860 N.Y.S.2d 288 [2008];Matter of Pulliam v. Whitmore, 24 A.D.3d 921, 922, 804 N.Y.S.2d 696 [2005] ). To the extent that petitioner and his inmate witness provided testimony that contradicted that of the sergeant and supported petitioner's theory of retaliation, such testimony presented credibility issues to be resolved by the Hearing Officer ( see Matter of Barnes v. Prack, 101 A.D.3d 1277, 1278, 955 N.Y.S.2d 447 [2012];Matter of Vigliotti v. Bell, 52 A.D.3d at 1064, 860 N.Y.S.2d 288;Matter of Pulliam v. Whitmore, 24 A.D.3d at 922, 804 N.Y.S.2d 696). We have reviewed petitioner's remaining contentions, including his claims that he was improperly denied documentary evidence and the testimony of a requested witness related to his claim of retaliation, and find them to be unavailing ( see Matter of Barnes v. Prack, 101 A.D.3d at 1278, 955 N.Y.S.2d 447;Matter of Gonzalez v. Venettozzi, 94 A.D.3d 1313, 1314, 942 N.Y.S.2d 686 [2012],lv. denied19 N.Y.3d 812, 951 N.Y.S.2d 722, 976 N.E.2d 251 [2012];Matter of Williams v. Fischer, 69 A.D.3d 1278, 1278–1279, 895 N.Y.S.2d 539 [2010] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.