| Matter of McIver v Fischer |
| 2009 NY Slip Op 03972 [62 AD3d 1174] |
| May 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of Derek McIver, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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, a prison inmate, was charged in a misbehavior report with disobeying a directorder, making threats and creating a disturbance. At the conclusion of a tier III disciplinaryhearing, he was found guilty of all charges. That determination was administratively affirmed,prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.
We confirm. Substantial evidence in the form of the misbehavior report and testimonyadduced at the hearing, including statements made by petitioner, supports the determination ofguilt (see Matter of McFadden vArmmitage, 1 AD3d 670, 670 [2003]). Petitioner's claim that the disciplinaryproceedings were initiated against him for retaliatory purposes created a credibility issue forresolution by the Hearing Officer (seeMatter of Taveras v Fischer, 59 AD3d 827, 828 [2009]). Petitioner's remainingcontentions, including his claims that the misbehavior report failed to provide sufficient notice ofthe charges and he was denied the right to present witness testimony, have been examined andfound to be unavailing.
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.