| Matter of Brown v Fischer |
| 2009 NY Slip Op 08535 [67 AD3d 1221] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Antonio Brown, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers 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, an inmate, was charged in a misbehavior report with violent conduct, assaultingstaff and creating a disturbance following an incident during which he struck a correction officerduring a pat frisk. Following a tier III disciplinary hearing, petitioner was found guilty on allcharges. That determination was affirmed upon administrative review, prompting petitioner tocommence this CPLR article 78 proceeding.
We confirm. The misbehavior report, along with the hearing testimony of the correctionofficers involved in the incident, provide substantial evidence of petitioner's guilt (see Matter of Gimenez v Artus, 63AD3d 1461, 1462 [2009]; Matterof Jackson v McGinnis, 47 AD3d 1100, 1100-1101 [2008]). To the extent thatpetitioner claims that the misbehavior report was written in retaliation for past grievances that hefiled against various correction officers, this raised an issue of credibility to be resolved by theHearing Officer (see Matter of Muller vFischer, 62 AD3d 1191, 1191 [2009]; Matter of Washington v Napoli, 61 AD3d 1243, 1243 [2009],lv denied 13 NY3d 704 [2009]). Finally, we are unpersuaded by petitioner's argumentthat he was improperly denied a photocopy of several logbook entries, inasmuch as the HearingOfficer provided a transcription of the entries and petitioner has not demonstrated how he wasprejudiced [*2]in the preparation of his defense (see Matter of Bunting v Goord, 25AD3d 845, 846 [2006]; Matter ofReed v Selsky, 9 AD3d 710, 711 [2004], lv denied 3 NY3d 611 [2004]).
Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.