| Matter of Brown v Taylor |
| 2009 NY Slip Op 04150 [62 AD3d 1230] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Osmond K. Brown, Petitioner, v Justin Taylor, asSuperintendent of Governeur Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in St. Lawrence County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violent conduct, creating a disturbance,interference with an employee, refusing a direct order and making threats. Following a tier IIdisciplinary hearing, petitioner was found guilty of creating a disturbance and refusing a directorder.[FN*]After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78proceeding.
We confirm. Initially, we find that the written misbehavior report, containing a specific [*2]account and authored by the correction officer involved in theincident, who corroborated the report through her testimony, provides substantial evidence tosupport the determination (see Matter ofSaunders v Goord, 49 AD3d 1000, 1000 [2008]; Matter of Dolan v Goord, 41 AD3d 1119, 1119 [2007]). To theextent that there was some testimony that tended to refute the correction officer's version ofevents, that raised an issue of credibility for the Hearing Officer to resolve (see Matter ofIgartua v Rivera, 58 AD3d 1046, 1046 [2009]; Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008]). Likewise,we find no merit to petitioner's claim that he was improperly denied the right to call severalcivilian witnesses, inasmuch as they were not present during the incident and, in any case, theirtestimony would have been cumulative and redundant to evidence already produced at thehearing (see Matter of Scott vFischer, 57 AD3d 1035, 1036 [2008]; Matter of Tafari v Selsky, 33 AD3d 1029, 1030 [2006], lvdenied 7 NY3d 717 [2006]).
We have examined petitioner's remaining contentions, including that the Hearing Officerwas not fair and impartial, and find them to be either unpreserved or unsupported by the record.
Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: There is a discrepancy withinthe written hearing disposition as to whether petitioner was found guilty of making threats.However, in this proceeding respondent indicates that petitioner was not found guilty of makingthreats.