| Matter of Combes v Artus |
| 2009 NY Slip Op 03818 [62 AD3d 1134] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of George Combes, Petitioner, v Dale Artus,as Superintendent of Clinton Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following an altercation with another inmate, petitioner was charged in a misbehavior reportwith fighting, refusing a direct order and violent conduct.[FN*]A tier III disciplinary hearing ensued, at which petitioner pleaded guilty to fighting and notguilty to the remaining charges. At the conclusion of the hearing, petitioner was found guilty ofall charges and a penalty was imposed. Upon administrative review, the direct order charge wasdismissed and the penalty was modified accordingly. Petitioner thereafter commenced this CPLRarticle 78 proceeding to [*2]challenge the determination of guilt.
Inasmuch as petitioner pleaded guilty to fighting, he is precluded from challenging thedetermination of guilt to that extent (seeMatter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Thorpe v Fischer, 53 AD3d1003, 1004 [2008]). As to the violent conduct charge, the misbehavior report and testimonyadduced at the hearing provide substantial evidence of petitioner's guilt (see Matter of Ponder v Fischer, 54AD3d 1094, 1095 [2008]). Petitioner's exculpatory testimony, as well as his claim ofself-defense, presented credibility issues for the Hearing Officer to resolve (see Matter ofDancy v Goord, 58 AD3d 922 [2009]). Contrary to petitioner's assertion, the Hearing Officerwas authorized to call a witness that had not been requested by petitioner (see Matter ofLamage v Goord, 285 AD2d 724 [2001], appeal dismissed 97 NY2d 639 [2001]).Petitioner's remaining contentions, including his assertion that this incident should have resultedin a tier II hearing, instead of a tier III hearing, are either unpreserved for our review or lackingin merit.
Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Although the parenthetical inthe misbehavior report incorrectly identified a violation of rule 104.11 as creating a disturbance,as opposed to engaging in violent conduct (see 7 NYCRR 270.2 [B] [5] [ii]), petitionerdid not object to this discrepancy at the administrative hearing and, in any event, the HearingOfficer correctly identified and applied the proper rule violation.