| Matter of Lamage v Bezio |
| 2010 NY Slip Op 05638 [74 AD3d 1676] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edwin Lamage, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 (1) a determination of the Superintendent of ElmiraCorrectional Facility which found petitioner guilty of violating certain prison disciplinary rules,and (2) a determination of the Commissioner of Correctional Services which directed petitionerbe placed in involuntary protective custody.
Petitioner became loud and argumentative with a civilian cook, ignored a correction officer'sdirectives to calm down and put his hands on the wall, and spoke to the officer in a derogatorymanner. As a result, he was charged in a misbehavior report with refusing a direct order, creatinga disturbance, engaging in harassment and violating frisk procedures. Following a tier IIdisciplinary hearing, he was found guilty of the first three charges, but not guilty of the last. Thedetermination was affirmed on administrative appeal. Prior to this incident, petitioner was placedin involuntary protective custody based upon confidential information received by a correctionsergeant that petitioner had been assaulted by another inmate. Petitioner commenced this CPLRarticle 78 proceeding challenging both the disciplinary determination and the determinationplacing him in involuntary protective custody.
Initially, we note that petitioner has not made any arguments with respect to the [*2]involuntary protective custody determination in his brief and,consequently, his challenge to said determination is deemed abandoned (see Matter of Whaley v Goord, 47AD3d 1132, 1133 [2008]; Matterof Toledo v Selsky, 12 AD3d 824, 824 [2004]). As for the disciplinary determination,we find that the misbehavior report, together with the testimony given by correction officials atthe disciplinary hearing, provide substantial evidence supporting the determination of guilt (see Matter of Williams v Fischer, 69AD3d 1278, 1278 [2010]; Matterof Jamison v Goord, 8 AD3d 860, 860 [2004]). Petitioner's claim that the misbehaviorreport was prepared in retaliation for a grievance he filed against the correction officer whoauthored it is not substantiated by the record and presented a credibility issue for the HearingOfficer to resolve (see Matter ofHamilton v Selsky, 13 AD3d 844, 845 [2004], lv denied 5 NY3d 704 [2005];Matter of Jamison v Goord, 8 AD3d at 860). Likewise, the record does not demonstratethat the Hearing Officer was biased or that the determination of guilt flowed from any allegedbias (see Matter of Webb vLeclaire, 52 AD3d 1131, 1133 [2008]; Matter of Hamilton v Selsky, 13 AD3dat 845-846). Petitioner's remaining claims are either not preserved for our review or are lackingin merit.
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.