| Matter of West v Fischer |
| 2010 NY Slip Op 04080 [73 AD3d 1301] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of Harry West, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
Petitioner, a prison inmate, allegedly struck a correction officer while leaving his cell andfought against that officer and two others who then attempted to subdue him. A misbehaviorreport was filed and, after a tier III disciplinary hearing, a Hearing Officer found petitioner guiltyof assaulting staff members, engaging in violent conduct and failing to comply with frisk andsearch procedures. Following an unsuccessful administrative appeal, petitioner commenced thisCPLR article 78 proceeding.
We confirm. The misbehavior report, as well as the hearing testimony of the correctionofficers involved in the incident, provide substantial evidence of petitioner's guilt (see Matter of Brown v Fischer, 67AD3d 1221, 1221 [2009]; Matterof McLean v Fischer, 63 AD3d 1468, 1469 [2009]). Petitioner claimed that thedisciplinary charges were fabricated in retaliation for earlier complaints made by him, but thatcreated a credibility question for the Hearing Officer to resolve (see Matter of Brown vFischer, 67 AD3d at 1221; Matter of Barrett v Fischer, 58 AD3d 1031, 1032[2009]). Finally, given the serious nature of petitioner's conduct, we are unpersuaded that thepenalty imposed was excessive (seeMatter of Shankle v Goord, 45 AD3d 1084, 1085[*2][2007], lv denied 10 NY3d 701 [2008]).
Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.