| Matter of Morusma v Fischer |
| 2010 NY Slip Op 05637 [74 AD3d 1675] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jean Morusma, 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.
When a female correction officer failed to respond to a series of personal questions asked bypetitioner, petitioner proceeded to stare at her in a manner that made her uncomfortable. Hecontinued to stare at her even after she directed him to stop. As a result, petitioner was chargedin a misbehavior report with stalking, harassment and refusing a direct order. Following a tier IIIdisciplinary hearing, he was found guilty of the charges. On administrative appeal, the stalkingcharge was dismissed, but the determination of guilt was upheld with respect to the remainingcharges. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Williams v Fischer, 69 AD3d 1278, 1278 [2010];Matter of Crews v O'Keefe, 283 AD2d 692, 693 [2001]). Petitioner's contrary version ofevents presented a credibility issue for the Hearing Officer to resolve (see Matter of Lashley v Goord, 39AD3d 1105, 1106 [2007]). We reject petitioner's claim that the hearing was not completedin a timely manner inasmuch as proper extensions were obtained and the hearing was completedwithin the time specified in the second extension (see Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]; Matter of McKinley v Goord, 44AD3d 1164 [2007]). Petitioner's challenge to the sufficiency of the misbehavior report hasnot been preserved for our [*2]review.
Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.