| Matter of Hodges v Fischer |
| 2010 NY Slip Op 02033 [71 AD3d 1295] |
| March 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Clifton Hodges, Appellant, v Brian Fischer, asCommissioner 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 Albany County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
While conducting a facility count on December 11, 2007, a correction officer observedpetitioner with his hand inside the front of his pants stroking his groin area. The incident led to aconfrontation and petitioner was subsequently charged in a misbehavior report with engaging inlewd conduct and refusing to obey a direct order. Following a tier III disciplinary hearing,petitioner was found guilty of the former charge but not guilty of the latter. The guiltydetermination was administratively affirmed and this CPLR article 78 proceeding ensued.
We confirm. Petitioner's assertion that he was tucking in his shirt presented a credibilitydetermination for the Hearing Officer to resolve (see Matter of James v Poole, 52 AD3d 1083, 1084 [2008], lvdenied 11 NY3d 710 [2008]). In that regard, the author of the misbehavior report testifiedthat she witnessed petitioner with his hand fully inserted into the front of his pants, that he wassexually aroused and that his shirt was tucked in. A second correction officer, called as a witnessby petitioner, stated that he saw petitioner pulling his hand out of his pants. Such testimony andthe eyewitness misbehavior report constitute substantial evidence of petitioner's guilt (seeMatter of James v Fischer, 58 AD3d 981 [2009]; Matter of LaFontant [*2]v Fischer, 51AD3d 1347, 1347 [2008]).
To the extent preserved, petitioner's remaining contentions, including that he was denied afair hearing and that the misbehavior report was insufficiently detailed to afford him theopportunity to prepare a defense, have been reviewed and are determined to be without merit.Accordingly, we discern no basis upon which to disturb the determination.
Cardona, P.J., Spain, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.