| Matter of Cruz v Fischer |
| 2008 NY Slip Op 09514 [57 AD3d 1055] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Augustine Cruz, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 Supreme Court,entered in Albany County) to review a determination of respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
Following a physical altercation with another inmate, petitioner was charged in a misbehavior reportwith fighting, engaging in violent conduct, assaulting an inmate, possessing a weapon and creating adisturbance. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guiltyof all charges. That determination was administratively affirmed, prompting petitioner to commence thisCPLR article 78 proceeding seeking annulment. We now confirm.
Contrary to petitioner's assertion, the determination of guilt is supported by substantial evidence inthe form of the misbehavior report, related documentation and photographs and testimony adduced atthe hearing (see Matter of Shankle vGoord, 45 AD3d 1084, 1085 [2007]). Petitioner's denial of the allegations created acredibility issue for resolution by the Hearing Officer (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]). We haveexamined petitioner's remaining contentions, including his claims that the misbehavior report wasdefective and the hearing was untimely, and, to the extent preserved, find them to be unavailing.[*2]
Mercure, J.P., Carpinello, Rose, Malone Jr. and Kavanagh,JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.