Matter of Fort v Fischer

2008 NY Slip Op 05853

Decided on June 26, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 26, 2008
503987



Calendar Date: May 14, 2008
Before: Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ.


Felton R. Fort, Nananoch, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Martin
A. Hotvet of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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.

Correction officers advised petitioner that he had to move to the top bunk of his prison cell. Claiming that a medical condition prevented him from doing so, petitioner refused. After it was determined that petitioner had no such medical condition that would preclude him from moving, he was charged in a misbehavior report with disobeying a direct order, lying and violating facility movement regulations. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of all three charges. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, together with the hearing testimony from a prison doctor who indicated that there was no documented medical reason why petitioner could not have moved to the top bunk, comprise substantial evidence to support the determination of guilt (see Matter of Wilson v Goord, 47 AD3d 1102, 1102-1103 [2008]). Petitioner's contradictory testimony regarding his health presented a credibility issue for the Hearing Officer [*2]to resolve (see Matter of Rosa v Brown, 47 AD3d 1142, 1143 [2008]). Petitioner's remaining contentions have been examined and found to be unavailing.

Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.