| Matter of Dallio v Fischer |
| 2009 NY Slip Op 09334 [68 AD3d 1380] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Thomas Dallio, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner, an inmate, was charged in a misbehavior report with engaging in lewd conductafter he masturbated in front of the facility nurse. Following a tier III disciplinary hearing, hewas found guilty of the charge. This determination was affirmed on administrative appeal,prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. To the extent that petitioner challenges the evidentiary basis of thedetermination, we conclude that the misbehavior report and the hearing testimony of its authorprovide substantial evidence to support the determination of guilt (see Matter of Sanders v Goord, 47AD3d 987, 988 [2008]). We reject petitioner's contention that he was denied the right to callcertain witnesses at the hearing as the witnesses requested had no first-hand knowledge of theincident (see Matter of Washington vNapoli, 61 AD3d 1243, 1243 [2009], lv denied 13 NY3d 704 [2009]). Finally,petitioner's contention that the misbehavior report was written in retaliation for a grievance hehad filed presented a credibility determination for the Hearing Officer to resolve (see Matter of Johnson v Goord, 46AD3d 1038, 1038-1039 [2007]).
Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.