| Matter of Douglas v Fischer |
| 2010 NY Slip Op 06745 [76 AD3d 1162] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of David Douglas Sr., Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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.
Petitioner, a prison inmate, was served with a misbehavior report charging him with startinga fire and destroying state property after it was alleged that he set fire to the blankets on his bed.A tier III disciplinary hearing ensued, after which petitioner was found guilty of both charges.Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLRarticle 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officers who investigatedthe incident and testimony of an inmate who witnessed petitioner setting the fire providesubstantial evidence to support the determination of guilt (see Matter of Rohs v Fischer, 73 AD3d 1256 [2010]; Matter of Lopez v Fischer, 69 AD3d1076, 1076 [2010]). Petitioner's contention that the fire was set by another inmate inretribution for petitioner having informed about other inmates' drug use raised a credibility issueto be resolved by the Hearing Officer (see Matter of West v Fischer, 73 AD3d 1301, 1301-1302 [2010];Matter of Barrett v Fischer, 58 [*2]AD3d 1031, 1032[2009]). Lastly, we discern no error on the part of the Hearing Officer in disallowing thetestimony of a correction counselor requested by petitioner, inasmuch as he had no first-handknowledge of the incident (see Matter ofDallio v Fischer, 68 AD3d 1380 [2009]; Matter of Washington v Napoli, 61 AD3d 1243 [2009], lvdenied 13 NY3d 704 [2009]).
Petitioner's remaining contentions have been examined and are without merit.
Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.