| Matter of Hawkins v Fischer |
| 2010 NY Slip Op 03214 [72 AD3d 1378] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Chris M. Hawkins, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 incident during which petitioner, a prison inmate, attempted to strike acorrection officer while being escorted to his vocational program, he was served with amisbehavior report charging him with attempting to assault staff, refusing a direct order,interfering with an employee and being out of place. At a tier III disciplinary hearing, petitionerpleaded guilty to being out of place and, at the conclusion of the hearing, was additionally foundguilty of attempting to assault staff and interfering with an employee. The determination wasupheld on administrative review and petitioner now appeals.
Initially, we note that petitioner may not challenge the determination with regard to thecharge of being out of place inasmuch as he pleaded guilty to that charge during the hearing (see Matter of McMoore v Bezio, 67AD3d 1218 [2009]; Matter ofPedraza v Fischer, 65 AD3d 1434, 1435 [2009]). With regard to the remaining charges,the detailed misbehavior report, the testimony of the correction officers involved and thesupporting documentation provide substantial evidence to support the determination ofpetitioner's guilt (see Matter of Jones vFischer, 69 AD3d 1065, 1065-1066 [2010]; Matter of Edwards v Bezio, 69 AD3d 1077 [2010]). [*2]Additionally, our review of the record reveals that petitioner wasafforded a fair and impartial hearing and the determination of his guilt was a result of theevidence presented, rather than any alleged bias on the part of the Hearing Officer (see Matter of Hayes v Fischer, 70AD3d 1085, 1086 [2010]; Matterof Burgess v Goord, 34 AD3d 948, 949 [2006], lv denied 8 NY3d 813 [2007]).Petitioner's claim that he did not receive competent employee assistance and that he was deniedaccess to certain documentary evidence is unpreserved for our review due to his failure to raisethese issues during the hearing (seeMatter of Riggsbee v Fischer, 65 AD3d 729 [2009]; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]). Theremainder of petitioner's arguments have been examined and are without merit.
Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.