| Matter of McLaughlin v Fischer |
| 2010 NY Slip Op 00330 [69 AD3d 1071] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of William McLaughlin, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following a melee in the prison exercise yard involving multiple inmates, petitioner wascharged in a misbehavior report with fighting, engaging in violent conduct and failing to follow adirect order. Petitioner was found guilty of all charges following a tier III disciplinary hearingand that determination was affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report and the hearing testimony of its author providesubstantial evidence in support of the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]).Petitioner's testimony that he was not involved in the fight created a credibility issue for theHearing Officer to resolve (see Matterof Johnson v Rock, 64 AD3d 1096 [2009], lv denied 13 NY3d 713 [2009]).Finally, we reject petitioner's contention that the Hearing Officer erred by failing to exoneratehim following the viewing at the hearing of a videotape of the melee, as our review of thevideotape confirms that there is no [*2]information containedtherein that contradicted the misbehavior report (see Matter of Addison v Selsky, 256AD2d 787, 788 [1998]). Petitioner's remaining claims, including that the Hearing Officer wasbiased, have been considered and found lacking in merit.
Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.