| Matter of Sital v Fischer |
| 2010 NY Slip Op 04290 [73 AD3d 1348] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Frans Sital, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
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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.
Petitioner, a prison inmate, became involved in an altercation with correction officers afterhe failed to clear a facility metal detector. When one of the officers requested that he empty hispocket, petitioner slapped the officer's hand and uttered an expletive. During the ensuingconfrontation, petitioner struck the officer multiple times in the face and body before ultimatelybeing subdued. As a result, petitioner was served with a misbehavior report charging him withrefusing a direct order, assaulting staff, engaging in violent conduct, interfering with anemployee and failing to comply with frisk procedures. Following a tier III disciplinary hearing,petitioner was found guilty of all charges. His administrative appeal was unavailing, after whichpetitioner commenced this CPLR article 78 proceeding.
We affirm. The detailed misbehavior report, along with the testimony of the correctionofficers involved in the incident and the supporting documentation, provide substantial evidenceto support the determination of petitioner's guilt (see Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]; Matter of Edwards v Venettozzi, 61AD3d 1224, 1225 [2009]). To the extent that [*2]petitionerand one of his inmate witnesses testified to a different version of the events, that presented aquestion of credibility to be resolved by the Hearing Officer (see Matter of Tusa v Bezio, 70 AD3d 1159 [2010]; Matter of Jones v Fischer, 69 AD3d1065, 1066 [2010]). Petitioner's claim that he was denied effective employee assistance iswithout merit where, shortly after the commencement of the hearing, the proceedings werepostponed for three days to enable petitioner to confer with his assistant and, thereafter, heexpressed satisfaction with the assistance he had received (see Matter of Russell v Selsky, 50 AD3d 1412, 1413 [2008]).Additionally, the documents that petitioner claims he was wrongly denied were irrelevant to thecharged misbehavior (see Matter ofMitchell v Bezio, 69 AD3d 1281 [2010]; Matter of Parkinson v Selsky, 49 AD3d 985, 986 [2008]). Finally,our review of the record demonstrates that petitioner was afforded a fair and impartial hearingand the determination flowed from the evidence presented, rather than any alleged bias on thepart of the Hearing Officer (see Matterof Hayes v Fischer, 70 AD3d 1085 [2010]; Matter of Burgess v Goord, 34 AD3d 948, 949 [2006], lvdenied 8 NY3d 813 [2007]). We have examined petitioner's remaining contentions and findthem to be without merit.
Mercure, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.