| Matter of Malik v Bezio |
| 2010 NY Slip Op 06673 [76 AD3d 1128] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Sultan A. Malik, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
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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 certain prison disciplinary rules.
While petitioner was being transported from one correctional facility to another, thecorrection officer who was transporting him opened the rear door of the van to allow him to exit.When the officer did so, petitioner kicked him in the chest and arm. As a result, petitioner wascharged in a misbehavior report with assaulting staff, engaging in violent conduct and interferingwith an employee. He was found guilty of these charges at the conclusion of a tier III disciplinaryhearing. The determination was later affirmed on administrative appeal, resulting in this CPLRarticle 78 proceeding.
We confirm. The misbehavior report and related documentation, together with the testimonyadduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Perez v Fischer, 69 AD3d1279, 1279 [2010]; Matter ofPedraza v Fischer, 65 AD3d 1434, 1435 [2009]). Petitioner's assertions that he wasassaulted by the officer and that the misbehavior report was written in retaliation for a priorincident presented credibility issues [*2]for the Hearing Officer toresolve (see Matter of Terrence vFischer, 64 AD3d 1110, 1111 [2009]; Matter of Jackson v Dubray, 56 AD3d 919 [2008]). Moreover, wefind no error in the denial of petitioner's request for the videotape of the incident in questioninasmuch as the Hearing Officer ascertained that such videotape did not exist (see Matter of Applewhite v Goord, 45AD3d 1112, 1112 [2007], lv denied 10 NY3d 711 [2008]; Matter of Griffin v Goord, 43 AD3d591, 592 [2007]). On the other hand, given that there is no indication in the record that thedisclosure of the injured officer's medical records would jeopardize institutional security, theHearing Officer should have provided them to petitioner (see Matter of Jones v Fischer, 69 AD3d 1065, 1066 [2010]; Matter of McLean v Fischer, 63 AD3d1468, 1469-1470 [2009]). Nevertheless, in view of the overwhelming evidence ofpetitioner's guilt and that the Hearing Officer did not rely on such records, this error washarmless (see Matter of Jones v Fischer, 69 AD3d at 1066; Matter of McLean vFischer, 63 AD3d at 1470). Petitioner's remaining contentions, including his claim that theHearing Officer was biased, have been considered and are without merit.
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.