| Matter of Rivera v Fischer |
| 2008 NY Slip Op 09520 [57 AD3d 1063] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert Rivera, 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.
Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing of makingthreats, refusing a direct order and interfering with an employee. The administrative affirmance of thatdetermination prompted petitioner to commence this CPLR article 78 proceeding seeking annulment.
As an initial matter, we note that, contrary to petitioner's assertion, Supreme Court properlytransferred the proceeding to this Court inasmuch as the petition raises a question of substantialevidence (see Matter of Rodriguez vGoord, 40 AD3d 1324, 1325 [2007]). Turning to the merits, the misbehavior report, togetherwith the testimony adduced at the hearing, provide substantial evidence to support the determination ofguilt (see Matter of Wigfall v Goord, 53AD3d 943, 943 [2008]). As for petitioner's denial of the allegations against him, a credibility issuewas created for resolution by the Hearing Officer (see Matter of Jordan v Fischer, 53 AD3d 1013 [2008]). To the extentpreserved, petitioner's remaining contentions, including his claim that he was denied a fair and impartialhearing, have been examined and found to be unavailing.[*2]
Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.