| Matter of Hernandez v Bezio |
| 2010 NY Slip Op 06730 [76 AD3d 1148] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Alejandro Hernandez, Petitioner, v Norman R.Bezio, as Director of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 several correction officers witnessed petitioner engaged in a fight with another inmate,he was served with a misbehavior report charging him with fighting, creating a disturbance andrefusing a direct order. Following a tier III disciplinary hearing, he was found guilty of allcharges and that determination was affirmed on administrative review. Petitioner thereaftercommenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, related documents and testimony of the correctionofficers who witnessed the altercation provide substantial evidence to support the determinationof guilt (see Matter of Key vFischer, 72 AD3d 1365, 1366 [2010]; Matter of Fareedullah v Fischer, 64 AD3d 1024, 1025 [2009],lv denied 13 NY3d 713 [2009]). Petitioner's contention that he was defending himselffrom attack raised a question of credibility to be [*2]determinedby the Hearing Officer (see Matter ofStone v Fischer, 62 AD3d 1064, 1065 [2009]; Matter of Bowers v Venettozzi, 59 AD3d 793 [2009]). Petitioner'sprocedural contentions, including that he was denied witnesses and received insufficientassistance, are unpreserved by his failure to raise them during the hearing, when they could havebeen addressed (see Matter of Joseph vFischer, 67 AD3d 1103, 1104 [2009]; Matter of Hamilton v Goord, 32 AD3d 642, 643 [2006], lvdenied 7 NY3d 715 [2006]).
We have examined petitioner's remaining contentions and find them to be without merit.
Peters, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.