| Matter of Flemming v Fischer |
| 2010 NY Slip Op 05650 [74 AD3d 1693] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert Flemming, 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, was using the telephone when a correction officer gave him adirect order to sign the telephone sheet. Petitioner refused in a profane manner after which asergeant was notified. The sergeant arrived and directed petitioner to get off the telephone and,after refusing, petitioner swung a closed fist at the sergeant. In the ensuing struggle, threecorrection officers were injured. Based upon this incident, petitioner was served with amisbehavior report charging him with assault, refusing a direct order, using the telephonewithout authorization and violating telephone guidelines. Petitioner was found guilty after a tierIII disciplinary hearing and, after the determination was affirmed administratively, petitionercommenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, along with the hearing testimony, includingpetitioner's admissions, and the voluminous documentary evidence provide substantial evidenceto support the determination of guilt (see Matter of Perez v Fischer, 69 AD3d 1279, 1279 [2010]; Matter of Jones v Fischer, 69 AD3d1065, 1065-1066 [2010]). To the extent that petitioner asserted that he had no reason toassault the officers, that raised an issue of credibility for the Hearing Officer to resolve (see Matter of Edwards v Leclaire, 71AD3d 1199 [2010]; [*2]Matter of Hayes v Fischer, 70 AD3d 1085, 1086 [2010]).Petitioner's claim that he was improperly denied the right to view photographs of the officers'injuries is unpreserved for our review based upon his failure to raise that objection during thehearing (see Matter of Terrence vFischer, 64 AD3d 1110, 1111 [2009]; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]).
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.