| Matter of Gaines v Fischer |
| 2009 NY Slip Op 07895 [67 AD3d 1080] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Roger Gaines, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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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 a participant in a fight involving multiple inmates and he disregarded acorrection officer's directive to cease such conduct. As a result, he was charged in a misbehaviorreport with fighting, refusing a direct order and creating a disturbance. Following a tier IIIdisciplinary hearing, he was found guilty of the charges, and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Roye v Goord, 34 AD3d 1134 [2006]; Matter ofLamage v Goord, 285 AD2d 724, 724 [2001], appeal dismissed 97 NY2d 639[2001]). The contrary testimony of petitioner and his inmate witnesses presented a credibilityissue for the Hearing Officer to resolve (see Matter of Vassell v Fischer, 48 AD3d 876 [2008]; Matter of Griffin v Goord, 43 AD3d591, 591 [2007]). Moreover, we find no merit to petitioner's assertion that he wasimproperly denied the misbehavior report of a fellow inmate who was also involved in the fightgiven that it was irrelevant to the charges against petitioner (see Matter of Jackson v Goord, 18 AD3d 973, 974 [2005], lvdenied 5 NY3d 713 [2005]). Lastly, petitioner's challenge to the sufficiency of themisbehavior report is not preserved for our review given his failure to raise it at the hearing or inhis administrative appeal (see Matter of Serrano v Goord, 266 AD2d 661, 662 [1999],lv denied 94 NY2d 762 [2000]).
Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.