| Matter of Stone v Fischer |
| 2009 NY Slip Op 03655 [62 AD3d 1064] |
| May 7, 2009 |
| Appellate Division, Third Department |
| In the Matter of Raphael Stone, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with assaulting an inmate, fighting, creating adisturbance, engaging in violent conduct and possessing a weapon after he allegedly cut anotherinmate with a can lid. Petitioner pleaded guilty to fighting and, following a tier III disciplinaryhearing, was found guilty of the remaining charges and a penalty was imposed. That decisionwas affirmed upon petitioner's administrative appeal, prompting him to commence this CPLRarticle 78 proceeding to challenge the determination of guilt.
Preliminarily, petitioner pleaded guilty to fighting and is therefore precluded fromchallenging the evidence supporting the determination to that extent (see Matter of Wilson v Dubray, 54AD3d 1089, 1090 [2008]; Matterof Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]). As to the remaining charges, themisbehavior report, together with the testimony provided by the authoring correction officer andthe inmate whom petitioner assaulted, provide substantial evidence of petitioner's guilt (see Matter of Ponder v Fischer, 54AD3d 1094, 1095 [2008]; Matter of Wilson v Dubray, 54 AD3d at 1090). Althoughno weapon was recovered, the victim testified that petitioner cut him with a can lid and theinjuries to both petitioner and the victim [*2]were consistent withthat type of weapon (see Matter of Brown v Goord, 286 AD2d 843, 844 [2001]). To theextent that petitioner denied the charges and contended that he acted in self-defense, hisassertions presented a credibility issue for the Hearing Officer to resolve (see Matter ofDancy v Goord, 58 AD3d 922, 923 [2009]; Matter of Brooks v Goord, 26 AD3d 572, 573 [2006]). Petitioner'sremaining contentions, including his claim that the Hearing Officer failed to assess thecredibility of certain confidential information gathered during the course of the underlyinginvestigation, were not raised at his disciplinary hearing and, hence, are not preserved for ourreview (see Matter of Johnson vDepartment of Correctional Servs., 53 AD3d 746, 747 [2008]; Matter of Handley vSelsky, 282 AD2d 798, 799 [2001]).
Mercure, J.P., Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.