| Matter of Terrence v Fischer |
| 2009 NY Slip Op 06061 [64 AD3d 1110] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gill Terrence, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
While petitioner was being frisked for weapons, he attempted to strike a correction officerwho had ordered him to stand so that mechanical restraints could be applied. An altercationensued, which necessitated the involvement of a second correction officer, and petitionersustained injuries while he was being subdued. As a result of this incident, petitioner wascharged in a misbehavior report with refusing a direct order, failing to comply with search andfrisk procedures and attempting to assault staff. He was found guilty of the charges following atier III disciplinary hearing. The determination was later upheld on administrative appeal with amodified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the documentary evidence and thetestimony adduced at the hearing, provide substantial evidence supporting the determination ofguilt (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Peana vFischer, 54 [*2]AD3d 1126, 1126-1127 [2008]). Petitioner'stestimony that it was the correction officers who were the aggressors and assaulted himpresented a credibility issue for the Hearing Officer to resolve (see Matter of Martinez vSelsky, 53 AD3d 989 [2008]). Although the correction officers decided to frisk petitionerbased upon information disclosed by a confidential source, the Hearing Officer was not requiredto independently assess the credibility of the confidential source since such information did notprovide the basis for the determination of guilt of the charges at issue (see Matter of McAdoov Goord, 32 AD3d 1058, 1059 [2006]; Matter of Rowe v Goord, 289 AD2d 764, 765[2001]). Petitioner's claim that he was improperly denied the right to call a correction counselorand a nurse as witnesses is unpreserved for our review given his failure to object at the hearing(see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Davila vSelsky, 48 AD3d 846, 847 [2008]). His remaining contentions have been considered andhave been found to be lacking in merit.
Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.