| Matter of Bartley v Fischer |
| 2010 NY Slip Op 04302 [73 AD3d 1363] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lawrence Bartley, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1]
Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Washington County) to review (1) a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule, and (2) a determination of respondentwhich directed that petitioner be placed in involuntary protective custody.
We confirm both determinations.[FN*]First, with regard to the prison disciplinary proceeding, petitioner claims that his employeeassistant was inadequate in failing to provide him with a copy of the use of force report, but anyerror was cured given that the Hearing Officer provided him with a copy (see Matter of Davis v Prack, 63 AD3d1457, 1458 [2009]). Moreover, substantial evidence supports the determination of guilt inthe form of the misbehavior report, testimony of its author and other documentary evidence (see Matter of Bowers v Venettozzi, 59AD3d 793 [2009]; Matter of Lamage v Fischer, 58 AD3d 1045, 1045 [2009]). Whilethe other inmate instigated the fight and petitioner claimed that he only acted in self-[*2]defense, the Hearing Officer was free to credit evidence that hisparticipation exceeded that necessary to protect himself (see Matter of Lamage v Fischer,58 AD3d at 1045-1046).
Lastly, the inmate who attacked petitioner had a history of assaultive behavior, used aweapon in the attack, and failed to explain why the fight occurred or address concerns thatpetitioner was still in jeopardy. Substantial evidence accordingly supports the Hearing Officer'sdetermination that petitioner "may be a potential victim," rendering involuntary protectivecustody appropriate (7 NYCRR 330.2 [b]; see Matter of Lane v Kirkpatrick, 68 AD3d 1280, 1281 [2009]).
Petitioner's remaining arguments have been considered and found to be without merit.
Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.
Footnote *: Petitioner filed two petitionsunder the same index number, which have been consistently treated as one proceeding by bothSupreme Court and the parties. We will do the same.