Opinion
2012-02-9
In the Matter of Omar WILLIAMS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Omar Williams, Ossining, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Omar Williams, Ossining, 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.
A correction officer supervising the clean up in the mess hall noticed that petitioner and a number of other inmates had failed to complete their work assignments. When the officer instructed petitioner to wash the table arms in the dining area, he refused. He then proceeded to encourage the inmates around him to refuse to do their work as well. As a result, petitioner was charged in a misbehavior report with refusing a direct order, creating a disturbance and inciting a demonstration. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Initially, upon reviewing the record, we do not find that the minor gaps in the hearing tape or transcript preclude meaningful review ( see Matter of Machicote v. Bezio, 87 A.D.3d 763, 764, 928 N.Y.S.2d 382 [2011]; Matter of Smith v. Martuscello, 85 A.D.3d 1516, 1516, 925 N.Y.S.2d 921 [2011], lv. denied 17 N.Y.3d 715, 2011 WL 5041668 [2011] ). Moreover, the detailed misbehavior report provides substantial evidence supporting the determination of guilt ( see Matter of Darshan v. Bango, 83 A.D.3d 1302, 920 N.Y.S.2d 739 [2011]; Matter of Tafari v. Selsky, 38 A.D.3d 1079, 1079, 831 N.Y.S.2d 603 [2007], lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ). Petitioner's claim that the misbehavior report was fabricated and the contrary version of events related by him and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve ( see Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 [2011]; Matter of Johnson v. Goord, 42 A.D.3d 626, 627, 838 N.Y.S.2d 275 [2007] ). Petitioner's remaining contentions have not been preserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.