| Matter of Page v Fischer |
| 2009 NY Slip Op 05932 [64 AD3d 1067] |
| July 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kenneth Page, 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 SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was observed fighting with other inmates in a prison recreation yard and chargedin a misbehavior report with creating a disturbance, violent conduct, fighting and disobeying adirect order. He was found guilty of the former three charges following a tier III disciplinaryhearing and a penalty was imposed. After exhausting his administrative remedies, petitionercommenced this CPLR article 78 proceeding challenging the determination.
We confirm. The misbehavior report, unusual incident report and testimony from officerspresent at the scene constitute substantial evidence of petitioner's guilt (see Matter of Price v Goord, 29 AD3d1203, 1204 [2006]). Petitioner's contention that he was not involved in the fighting created acredibility issue for the Hearing Officer to resolve (see Matter of Lashley v Goord, 39 AD3d 1105, 1106 [2007]) and,to that extent, the Hearing Officer relied on videotape evidence which substantiated testimonyfrom the author of the misbehavior report.
Petitioner's assertion that the misbehavior report failed to fulfill the particularityrequirements of 7 NYCRR 251-3.1 is unavailing. "A misbehavior report is sufficient if itcontains the date, time and place of the offense, identifies the disciplinary rule[s] alleged to have[*2]been violated and specifies the factual basis for the chargewith enough particularity to enable the inmate to prepare a defense" (Matter of Torres vGoord, 261 AD2d 759, 759 [1999] [citation omitted]). Here, the misbehavior reportcomplies with those requirements. Similarly unavailing is petitioner's claim that the misbehaviorreport is defective because it was not endorsed by a correction officer who witnessed thefighting. Although that officer testified to petitioner's general location during the incident, hespecifically stated that he did not observe petitioner throw a punch or fight. Consequently,petitioner suffered no prejudice from his failure to sign the misbehavior report (see Matter ofSpulka v Selsky, 277 AD2d 552, 553 [2000], lv denied 96 NY2d 703 [2001]).
To the extent that they are properly before us, petitioner's remaining contentions have beenreviewed and are determined to be without merit.
Peters, J.P., Spain, Kane, McCarthy and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.