| Matter of Lamphear v Fischer |
| 2010 NY Slip Op 06750 [76 AD3d 1166] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jamie Lamphear, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
While a correction officer was releasing petitioner from his cell to take a shower, heallegedly tried to violently kick the officer in the leg. During the ensuing scuffle, the officer gavepetitioner several orders to comply, which he ignored. Petitioner was eventually subdued, but theincident delayed the shower program for other inmates. Petitioner was charged in a misbehaviorreport with attempted assault, violent conduct, interference and refusing a direct order, and hewas found guilty of all charges following a tier III disciplinary hearing. When his administrativeappeal proved unavailing, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer involved in thefracas and the supporting documents provide substantial evidence to support the determination ofguilt (see Matter of Hawkins vFischer, 72 AD3d 1378, 1379 [2010]; Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010]).Petitioner's contention that the charges against him were in retaliation for a grievance he had filedagainst the correction officer involved in the incident presented an issue of credibility to beresolved by the Hearing Officer (seeMatter of Robertson v Fischer, 70 AD3d 1081, 1081-1082 [2010]; Matter of Holmes v Fischer, 66 AD3d1093, 1094[*2][2009]). Finally, the record demonstrates thatthe determination of petitioner's guilt was based upon the evidence presented rather than anyalleged hearing officer bias (see Matterof Key v Fischer, 72 AD3d 1365, 1366 [2010]; Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010],lv denied 15 NY3d 702 [2010]).
Petitioner's remaining contentions, including that the hearing was not timely conducted andthat he was denied certain documentary evidence, have been examined and found to be withoutmerit.
Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.