| Matter of Johnson v Rock |
| 2009 NY Slip Op 06055 [64 AD3d 1096] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael Johnson, Petitioner, v David A. Rock, asSuperintendent of Great Meadow 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.
Following a melee involving multiple inmates in the prison yard, petitioner was charged in amisbehavior report with fighting, engaging in violent conduct and refusing a direct order. A tierIII disciplinary hearing was convened, at the conclusion of which petitioner was found guilty ascharged and a penalty was imposed. The determination of guilt was affirmed upon petitioner'sadministrative appeal, but his penalty was reduced. He subsequently commenced this proceedingpursuant to CPLR article 78 seeking to annul the determination of guilt.
We confirm. The misbehavior report and testimony adduced at the hearing providesubstantial evidence to support the determination of guilt, and petitioner's insistence that he didnot take part in the fighting raised credibility issues which are properly resolved by the HearingOfficer (see Matter of Edwards v Venettozzi, 61 AD3d 1224, 1225 [2009]; Matter ofPeets v Bezio, 59 AD3d 833, 834 [2009]). Additionally, while the hearing transcriptcontains minor [*2]gaps and omissions, these deficiencies do notrender it so incomplete as to preclude meaningful judicial review (see Matter of Daniels vGoord, 31 AD3d 1076, 1077 [2006]). Petitioner's remaining arguments are eitherunpreserved for our review (see Matter of Perez v Fischer, 62 AD3d 1104, 1105 [2009];Matter of Peets v Bezio, 59 AD3d at 834) or have been examined and found to bewithout merit.
Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.