| Matter of Thorpe v Fischer |
| 2009 NY Slip Op 07907 [67 AD3d 1101] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Omar Thorpe, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*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 which foundpetitioner guilty of violating certain prison disciplinary rules.
Correction officers observed a number of inmates engaged in a violent physical altercation inthe recreation yard. When the inmates ignored directives to stop, chemical agents were used torestore order. Petitioner was identified as one of the inmates involved in the incident and, as aresult, was charged in a misbehavior report with fighting, engaging in violent conduct, disturbingthe order of the facility and refusing a direct order. Following a tier III disciplinary hearing, hewas found guilty of the charges. The determination was later affirmed on administrative appealand this CPLR article 78 proceeding ensued.
Initially, to the extent that petitioner asserts that the testimony relied upon by the HearingOfficer was contradictory and inconsistent, he raises an issue of substantial evidence. Uponreviewing the record, we find that the misbehavior report, related documentary evidence and thetestimony of the correction personnel involved in the incident provide substantial evidencesupporting the determination of guilt (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008];Matter of Wilson v Dubray, 54AD3d 1089, 1090 [2008]). The testimony of petitioner and his inmate witnesses thatpetitioner did not participate in the melee presented a credibility issue for the Hearing Officer toresolve (see Matter of Peana v Fischer, 54 AD3d at 1127; Matter of Dozier v Selsky, 54 AD3d1074, 1075 [2008]). Moreover, we find no error in [*2]theHearing Officer's denial of certain inmates, as well as a nurse, as witnesses inasmuch as theirtestimony would have been cumulative and redundant under the circumstances presented (see Matter of Brown v Taylor, 62AD3d 1230, 1231 [2009]; Matterof Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705[2009]). Petitioner's remaining contentions have either not been preserved for our review or arelacking in merit.
Peters, J.P., Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.