| Matter of James v Fischer |
| 2009 NY Slip Op 08115 [67 AD3d 1163] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Percell James, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.
Petitioner was observed engaging in a fight with fellow inmates in the recreation yard. Whenordered to desist by correction officers, the inmates failed to comply and the officers had to giveseveral more orders to stop before the fight ended. Following a tier III disciplinary proceeding,petitioner was found guilty of engaging in violent conduct, creating a disturbance, assaulting aninmate and refusing a direct order. After exhausting his administrative remedies, petitionercommenced this CPLR article 78 proceeding challenging the determination.
We confirm. Contrary to petitioner's contention, the detailed misbehavior report and theunusual incident report provide substantial evidence to support the determination of guilt (see Matter of Amaker v Selsky, 43AD3d 547, 547 [2007], lv denied 9 NY3d 814 [2007]; Matter of Johnson v Goord, 42 AD3d626, 627 [2007]). Petitioner's testimony that he was acting in self-defense presented acredibility issue for the Hearing Officer to resolve (see Matter of Bowers v Venettozzi, 59 AD3d 793, 793 [2009]).Moreover, the misbehavior report was sufficiently detailed to provide petitioner with notice ofthe charges against him (see Matter ofFrazier v Prack, 62 AD3d 1185, 1185 [2009]). Petitioner's contention that the HearingOfficer was biased has been reviewed and found to be unavailing; his remaining contentions areunpreserved for our [*2]review.
Mercure, J.P., Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.