| Matter of Pellot v Fischer |
| 2009 NY Slip Op 08547 [67 AD3d 1231] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of George Pellot, 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 a prison disciplinary rule.
Following an incident in which petitioner brushed up against a female cook in aninappropriate manner while she was working behind the serving line, petitioner was charged in amisbehavior report with assaulting staff, forcibly touching an employee and physicallyinterfering with an employee. He was found guilty of interfering with an employee following atier III disciplinary hearing. The determination was affirmed on administrative appeal, resultingin this CPLR article 78 proceeding.
Initially, the detailed misbehavior report, authored by the employee whom petitionertouched, and related documentation constitute substantial evidence supporting the determinationof guilt (see Matter of Kimble v Fischer, 56 AD3d 879, 880 [2008]; Matter of Taylerv Selsky, 49 AD3d 1060, 1060 [2008]). The contrary testimony of petitioner and that of hisinmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matterof Hale v Selsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776[2009]; Matter of Perez v Dubray, 55 AD3d 1119, 1119 [2008]). Petitioner's claim thatthe Hearing Officer improperly failed to inquire whether petitioner understood the charges orneeded a translator has not been [*2]preserved for our review(see Matter of Quinones v Fischer, 55 AD3d 1200, 1200-1201 [2008]; Matter of Brittv Fischer, 54 AD3d 1087, 1087 [2008]). Therefore, the determination must be confirmed.
Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.