| Matter of Key v Fischer |
| 2010 NY Slip Op 03201 [72 AD3d 1365] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Olsen Key, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.
Following an altercation with a correction officer in the mess hall during which petitioner, aprison inmate, allegedly became verbally abusive and attempted to strike the officer severaltimes with a metal pan, he was served with a misbehavior report charging him with attempting toinflict bodily harm on staff, making threats, engaging in violent conduct, creating a disturbance,refusing a direct order and harassment. On the same day, petitioner was served with anadditional misbehavior report charging him with disruptive conduct and refusing a direct order,emanating from an incident in which he was kicking a holding door and refused to stop whendirected to do so. Petitioner entered a plea of not guilty to the charges in the first misbehaviorreport and pleaded guilty to the charges in the second misbehavior report. Following a tier IIIdisciplinary hearing, petitioner was found guilty of all charges. On administrative appeal, thedetermination was confirmed, with a reduced penalty. Petitioner now appeals and we confirm.
To the extent that petitioner seeks to challenge the determination of guilt with regard to thecharges contained in the second misbehavior report, he is precluded from doing so by virtue ofhis guilty plea (see Matter of McMoorev Bezio, 67 AD3d 1218 [2009]; Matter of Pedraza v [*2]Fischer, 65AD3d 1434, 1435 [2009]). Turning to the charges stemming from the first misbehaviorreport, the report itself and the hearing testimony of the correction officers and the civilianemployee—who were all present at the altercation—provide substantial evidence tosupport the determination of petitioner's guilt (see Matter of Fareedullah v Fischer, 64 AD3d 1024, 1025 [2009],lv denied 13 NY3d 713 [2009]; Matter of Accardi v Goord, 34 AD3d 945, 946 [2006]). Anyinconsistencies between the testimony of the correction officers and that of the civilianemployee, and the fact that petitioner and his inmate witness testified to a contrary version ofevents, raised questions of credibility to be resolved by the Hearing Officer (see Matter of Pellot v Fischer, 67AD3d 1231 [2009]; Matter of Halev Selsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]).As for petitioner's allegation that the Hearing Officer was biased, we are satisfied upon a reviewof the record that the determination of petitioner's guilt was based upon the evidence presented,rather than any alleged bias (see Matterof Hayes v Fischer, 70 AD3d 1085, 1086 [2010]; Matter of Burgess v Goord, 34 AD3d 948, 949 [2006], lvdenied 8 NY3d 813 [2007]).
Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.