| Matter of Roussopoulas v Cunningham |
| 2010 NY Slip Op 06332 [76 AD3d 730] |
| August 5, 2010 |
| Appellate Division, Third Department |
| In the Matter of Nicholas Roussopoulas, Petitioner, v RaymondCunningham, as Superintendent of Woodbourne Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
Following an investigation, a correction officer determined that petitioner had been involvedin a physical altercation with another inmate. As a result, he was charged in a misbehavior reportwith fighting. He was found guilty of this charge at the conclusion of a tier III disciplinaryhearing and the penalty of 75 days of confinement in the special housing unit and loss of variousprivileges was imposed. The determination was later affirmed on administrative appeal and thisCPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior report, testimony adducedat the hearing and documentary evidence, supports the determination of guilt (see Matter of Partee v Bezio, 67 AD3d1224, 1224 [2009], lv denied 14 NY3d 702 [2010]; Matter of Wilson v Dubray, 54 AD3d1089, 1090 [2008]). There is no merit to petitioner's assertion that the Hearing Officer didnot properly ascertain the reliability of certain confidential information inasmuch as thedetermination was not based upon such information. Although petitioner denied fighting with theother inmate and claimed that he acted in self-defense, this presented a [*2]credibility issue for the Hearing Officer to resolve (see Matter of Nina v Selsky, 35 AD3d1049, 1050 [2006]; Matter ofCarter v Goord, 8 AD3d 771, 772 [2004]). Moreover, petitioner's claim that he wasimproperly denied a witness has not been preserved for our review due to his failure to object atthe hearing (see Matter of Polite vGoord, 49 AD3d 944 [2008]). Lastly, we find petitioner's challenge to the severity ofthe disciplinary penalty to be unavailing insofar as the penalty is not so shocking to one's senseof fairness as to be excessive (seeMatter of Wilson v Artus, 71 AD3d 1294 [2010]; Matter of Martinez v Goord, 48 AD3d 851 [2008]).
Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.