| Matter of Perez v Fischer |
| 2010 NY Slip Op 00621 [69 AD3d 1279] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eugene Perez, 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 two misbehavior reports with numerous disciplinary ruleviolations. In the first report, he was charged with refusing a direct order, assaulting staff,engaging in violent conduct and failing to follow frisk procedures after he refused to complywith a correction officer's directives during a pat frisk and proceeded to strike the officer in theface. In the second report, he was charged with possessing contraband and possessing an altereditem after a pointed piece of metal was found in a property bag belonging to him. A tier IIIdisciplinary hearing was thereafter conducted on the charges contained in both reports and hewas found guilty of the charges contained in the first report. The determination was lateraffirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, documentary evidence, and testimony presented at thehearing provide substantial evidence supporting the determination of guilt (see Matter of Peana v Fischer, 54AD3d 1126, 1126-1127 [2008]; Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]).Petitioner's protestation of innocence presented a credibility issue for the hearing officer toresolve (see Matter of Modlenaar vGoord, 21 AD3d 1190, 1191 [2005]; Matter of Marcial v Goord, 2 AD3d 1243, 1244 [2003]). Hisremaining contentions, including his claim of [*2]hearing officerbias, have not been preserved for our review.
Cardona, P.J., Peters, Lahtinen, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.