| Matter of Sital v Fischer |
| 2010 NY Slip Op 03015 [72 AD3d 1306] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Frans Sital, Petitioner, v Brian Fischer, asCommissioner 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.
After he refused a correction officer's directive to provide a urine specimen, petitioner wascharged in a misbehavior report with failing to comply with urinalysis testing procedures andrefusing a direct order. He was found guilty of the charges following a tier III disciplinaryhearing. The determination was later affirmed on administratve appeal with a modified penalty.This CPLR article 78 proceeding ensued.
As an initial matter, contrary to petitioner's claim, we do not find that gaps in the hearingtranscript are so significant as to preclude meaningful review (see Matter of Villafane v Fischer, 63AD3d 1403, 1404 [2009]; Matterof Finley v Goord, 47 AD3d 995, 996 [2008]). Turning to the merits, the detailedmisbehavior report, together with the testimony of the correction officer who authored it, providesubstantial evidence supporting the determination of guilt (see Matter of Dallio v Fischer, 68 AD3d 1380 [2009]; Matter of Rosario v Selsky, 37 AD3d921, 921 [2007]). Although petitioner maintained that the misbehavior report was [*2]fabricated and constituted a form of retaliation, this presented acredibility issue for the Hearing Officer to resolve (see Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]; Matter of McLean v Fischer, 63 AD3d1468, 1469 [2009]). Petitioner's remaining contentions, including his claim that the HearingOfficer was biased, have been considered and found to be unavailing.
Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.