| Matter of Brown v Fischer |
| 2010 NY Slip Op 03024 [72 AD3d 1320] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Osmond K. Brown, Petitioner, 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 St. Lawrence County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
After petitioner was found to be in possession of gambling paraphernalia, his cell wassearched and more such contraband was found. Petitioner refused to speak with a correctionsergeant about the incident and the sergeant directed that he be frisked, placed in mechanicalrestraints and escorted to the special housing unit. The correction officer who frisked andhandcuffed petitioner asked him what had happened, but petitioner refused to explain and beganmoving around the area. When the officer directed him to stop, he responded, "whats[sic] the matter you scared." Inasmuch as other inmates were moving into the area fromthe mess hall, the correction officer again ordered petitioner to stand still. Petitioner responded,"[t]ake these cuffs off me and we'll see tough guy." As a result, he was charged in a misbehaviorreport with refusing a direct order and making threats. Following a tier III disciplinary hearing,he was found guilty of the latter charge. The determination was subsequently affirmed onadministrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction [*2]officer who authored it and that of the other correction officer andsergeant involved in the incident, provide substantial evidence supporting the determination ofguilt (see Matter of Singh v Bezio,67 AD3d 1223 [2009]; Matter ofPeoples v Selsky, 33 AD3d 1179, 1180 [2006]). Notably, the author of the misbehaviorreport stated that he was unfamiliar with the reason why petitioner was handcuffed and, giventhat there may have been a fight and that other inmates were moving into the area from the messhall, he perceived petitioner's comment as a threat. The minor inconsistencies between theauthor's testimony and the misbehavior report presented a credibility issue for the HearingOfficer to resolve (see Matter of Lopezv Selsky, 28 AD3d 968, 968 [2006]). Therefore, we find no reason to disturb thedetermination of guilt.
Petitioner's remaining claim is not properly before us.
Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.