| Matter of Dixon v Brown |
| 2009 NY Slip Op 04144 [62 AD3d 1223] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Dixon, Petitioner, v William Brown, asSuperintendent of Eastern Correctional Facility, 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 SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with harassment, interference, threats bygesture and creating a disturbance following a conversation with the supervisor of volunteerservices at the facility where he was incarcerated. At the conclusion of the tier III hearing thatfollowed, petitioner was found not guilty of creating a disturbance and guilty of the remainingcharges and a penalty was imposed. Petitioner's administrative appeal was unsuccessful,prompting him to commence this CPLR article 78 proceeding to challenge the determination ofguilt.
We confirm. The detailed misbehavior report and the testimony adduced at the disciplinaryhearing constitute substantial evidence of petitioner's guilt (see Matter of Martin v Goord, 46 AD3d 1294, 1295 [2007]), assuch proof reflects that petitioner engaged in inappropriate behavior that delayed the supervisorfrom engaging in her scheduled duties (compare Matter of Washington v Selsky, 48 AD3d 864, 865[2008]; Matter of Ramirez vSchultz, 13 AD3d 457, 458-459 [2004]). To the extent that petitioner and his witnessestestified [*2]that he maintained his decorum and did not threatenthe supervisor in any way, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Ackridge v Ekpe, 43AD3d 509 [2007]). As for petitioner's procedural claims, petitioner twice stated that he didnot need inmate Phillips to testify and, in so doing, waived any claim that he was denied the rightto call witnesses (see Matter of Davis vGirdich, 20 AD3d 788, 789 [2005], lv denied 5 NY3d 715 [2005]). Whilepetitioner now contends that additional witnesses should have been called, he did not request anyadditional witnesses at the hearing, "and the Hearing Officer was under no obligation to presentpetitioner's case for him" (Matter ofRetamozzo v New York State Dept. of Correctional Servs., 31 AD3d 1083, 1084[2006]). Finally, petitioner's claim that he did not receive a fair hearing before an impartialHearing Officer is not preserved for our review (see Matter of Bailey v Burge, 48 AD3d 854 [2008]; Matter of Williams v Goord, 37 AD3d948 [2007], lv denied 8 NY3d 1021 [2007]).
Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.