| Matter of Telford v Fischer |
| 2009 NY Slip Op 07913 [67 AD3d 1109] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of James C. Telford, 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.
After a correction officer turned down the volume of a television that petitioner waswatching in the recreation room, petitioner became verbally abusive and engaged in disruptivebehavior in the presence of other inmates. As a result, he was charged in a misbehavior reportwith refusing a direct order, creating a disturbance, engaging in harassment, interfering with anemployee and engaging in a demonstration. Following a tier III disciplinary hearing, he wasfound guilty of all charges except refusing a direct order. The determination was modified onadministrative appeal and the charge of engaging in a demonstration was dismissed. Petitionerthen commenced this CPLR article 78 proceeding challenging the modified determination.
Initially, respondent concedes, and we agree, that the charge of interfering with an employeeis not supported by substantial evidence in the record (see Matter of Ramirez v Schultz, 13 AD3d 457 [2004]).Accordingly, the determination is annulled to that extent and all references thereto are expungedfrom petitioner's institutional record (see Matter of Rodriguez v Selsky, 48 AD3d 851, 852 [2008]).Inasmuch as petitioner has served the penalty and no loss of good time was recommended, thematter need not be remitted for a reassessment of the penalty (see Matter of Rizzuto v Goord, 36AD3d 1124, 1124 [2007]).
We do find, however, that the remainder of the determination is supported by substantialevidence in the form of the misbehavior report and the testimony of the correction officersfamiliar with the incident (see Matter ofLara v Dubray, 52 AD3d 1143, 1144 [2008]; Matter of Lashley v Goord, 39 AD3d 1105 [2007]). The contrarytestimony of petitioner and his witnesses presented a credibility issue for the Hearing Officer toresolve (see Matter of Hale vSelsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]).Petitioner's remaining contentions have not been preserved for our review.
Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interfering with an employee; petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.