| Matter of Pender v Fischer |
| 2010 NY Slip Op 00355 [69 AD3d 1099] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Ricky Pender, 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 certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, making threatsand failing to comply with visitation room guidelines. Following a tier III disciplinary hearing,petitioner was found guilty of failing to comply with visitation room guidelines and refusing adirect order, but not the charge of making threats. That determination was affirmed onadministrative 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, together with the corroborating hearingtestimony of its author, provide substantial evidence to support the determination of guilt (see Matter of Mobley v Dubray, 57AD3d 1055, 1056 [2008]). The contrary testimony of petitioner and other witnessespresented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]). We reject petitioner's[*2]contention that he was denied the right to call a certaininmate witness, as the record establishes that the requested testimony would have beencumulative to that provided by four other inmate witnesses (see Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lvdenied 12 NY3d 705 [2009]; Matter of Locke v Senkowski, 254 AD2d 553, 554[1998]). Moreover, the failure to provide petitioner with a written explanation for the denial ofthe witness does not require annulment as the reason for the denial is expressly stated in therecord (see Matter of McLean vFischer, 63 AD3d 1468, 1469 [2009]). Petitioner's further contention that he was deniedthe right to call his daughter as a witness is belied by the record, as petitioner withdrew hisrequest for her testimony (see Matter of Lam Trang v Goord, 283 AD2d 816, 817[2001]). Finally, contrary to petitioner's contention, respondent is not required to articulate thefactors relied on in affirming, on administrative appeal, the determination of guilt (see 7NYCRR 254.8).
Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.