| Matter of Truman v Fischer |
| 2010 NY Slip Op 06264 [75 AD3d 1019] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Joseph Truman, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
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.
After refusing a correction officer's directive to terminate a telephone call, petitioner becameverbally abusive toward her and took a fighting stance. When another correction officerintervened, petitioner punched him in the face. The officer proceeded to take petitioner to theground and, with the assistance of a correction counselor, placed him in mechanical restraints.During this time, petitioner continued to struggle and use obscene language. As a result, he wascharged in a misbehavior report with assaulting staff, refusing a direct order, engaging in violentconduct, interfering with an employee and harassment. A short time later, petitioner was stripfrisked and a sharpened piece of metal wrapped in duct tape with a white string was found in hisleft sock. Consequently, he was charged in a second misbehavior report with smuggling andpossessing contraband. A tier III disciplinary hearing was subsequently conducted on the chargescontained in both misbehavior reports and petitioner was found guilty of all charges. Thedetermination was later affirmed on administrative appeal and this CPLR article 78 proceedingensued.[*2]
We confirm. The detailed misbehavior reports andrelated documentation provide substantial evidence supporting the determination of guilt (see Matter of Cespedes v New York StateDept. of Correctional Servs., 68 AD3d 1429, 1430 [2009]; Matter of Kimble v Fischer, 56 AD3d879, 880 [2008]). The contrary testimony of petitioner and his inmate witnesses presented acredibility issue for the Hearing Officer to resolve (see Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]).Moreover, although petitioner asserts that he was denied employee assistance, he signed adocument waiving this right (see Matter of Freeman v Selsky, 285 AD2d 885 [2001];Matter of Wilkinson v Coombe, 242 AD2d 834, 835 [1997]). To the extent that heclaims that he did not know what he was waiving, the Hearing Officer remedied any deficienciesby offering to provide him with whatever he would have requested from an assistant. Petitioner,however, only requested witnesses and, with the exception of one who refused to testify, theytestified in his defense. Therefore, petitioner has not demonstrated that he was prejudiced (see Matter of Liner v Fischer, 56AD3d 1088, 1088 [2008], lv denied 12 NY3d 703 [2009]; Matter of Martino v Goord, 38 AD3d958, 959 [2007]). Lastly, the record does not substantiate petitioner's assertion that theHearing Officer was biased nor does it indicate that the determination at issue flowed from anyalleged bias (see Matter of Cannon vFischer, 62 AD3d 1109 [2009]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).
Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.