| Matter of France v Bezio |
| 2010 NY Slip Op 08040 [78 AD3d 1357] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brian France, Petitioner, v Norman R. Bezio, as Directorof Special Housing and Inmate Disciplinary Programs, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
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 the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with making threats and engaging in gang-relatedactivities. Specifically, the misbehavior report alleged that petitioner had approached another inmate onthe courtyard walkway, brandished a razor-type weapon and made representations that he wasinvolved with a gang called the Latin Kings. A tier III disciplinary hearing was held, and petitioner wasfound guilty of both charges. After the determination was affirmed administratively, petitionercommenced this CPLR article 78 proceeding.
We confirm. The content of the misbehavior report, as well as the testimony of the victim, providesubstantial evidence supporting the determination of petitioner's guilt (see Matter of Green v Bezio, 76 AD3d1135, 1135 [2010]; Matter of Moore vFischer, 76 AD3d 737, 737 [2010]; Matter of Hines v Goord, 29 AD3d 1204, 1205 [2006]). In this regard,the victim identified petitioner at the hearing, as well as from photographs shown to him shortly after theincident, as the person who brandished the weapon. He also testified that he had been told by anotherinmate that petitioner was, in fact, a member of the Latin Kings. The victim further [*2]testified that petitioner would "hang out" in the yard known as "KingCourt" and told the victim that he was a "King."[FN*]While petitioner denied that he was a member of the Latin Kings or any other gang, or that he hadthreatened the victim with a weapon, and offered the testimony of other inmates in an attempt todiscredit the victim, this evidence served to raise credibility issues for the Hearing Officer to resolve(see Matter of Moore v Fischer, 76 AD3d at 737; Matter of Parra v Fischer, 76 AD3d 724, 725 [2010]). Petitioner'sremaining contentions have been reviewed and found to be without merit.
Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: There was also testimony from thecorrection officer who authored the report that petitioner had been identified by a confidential informantas a member of the Latin Kings (see Matterof Sterling v Bezio, 76 AD3d 1165, 1165 [2010]).