| Matter of Robertson v Fischer |
| 2010 NY Slip Op 00751 [70 AD3d 1081] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of John Anthony Robertson, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
After a frisk of petitioner's prison cell revealed a plexiglas shank secreted under the toilet, hewas charged in a misbehavior report with possession of a weapon. Following a tier IIIdisciplinary hearing, petitioner was found guilty and that determination was administrativelyaffirmed. He thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officers who friskedpetitioner's cell, supporting documentation and pictures of the weapon provide substantialevidence to support the determination of guilt (see Matter of Pertillar v Fischer, 64 AD3d 1029 [2009]; Matterof James v Fischer, 58 AD3d 981 [2009]). Petitioner's claim that he received themisbehavior report in retaliation for grievances he had filed against the correction officersinvolved presented a credibility issue to be resolved by the Hearing Officer (see Matter of Holmes v Fischer, 66AD3d 1093 [2009]; Matter ofMcFadden v Venettozzi, 65 AD3d 1401, 1402 [2009]). Finally, the minor omissionscontained in the hearing transcript have not rendered it so incomplete as to preclude meaningfulreview (see Matter of Johnson vRock, 64 AD3d 1096 [*2][2009]; Matter of Villafane v Fischer, 63AD3d 1403, 1404 [2009]).
We have examined the remainder of petitioner's contentions and find them to be eitherunpreserved or without merit.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.