| Matter of Wahhab v Fischer |
| 2010 NY Slip Op 07092 [77 AD3d 996] |
| October 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Yaseen Wahhab, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Sania W. Khan 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.
A correction officer had cleared the count of the inmates in his unit and was preparing to callit into the watch commander when he noticed that a group of about five inmates, includingpetitioner, was congregated in front of one cell. He ordered them to disburse and was making anote of this when petitioner confronted him in an angry manner demanding to know why he waswriting down their cube numbers. Petitioner ignored the officer's directives to leave the area untilfinally the officer advised petitioner that he was giving him a direct order to leave. As a result ofthis incident, petitioner was charged in a misbehavior report with delaying the count, interferingwith an employee and refusing a direct order. He was found guilty of the charges following a tierIII disciplinary hearing and the determination was affirmed on administrative appeal. This CPLRarticle 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Valentine v Goord, 18 AD3d 997, 998 [2005], lvdismissed 5 NY3d 816 [2005]; Matter of Wigfall v Goord, 16 AD3d 791, 791 [2005]). Petitioner'scontrary testimony and that of his inmate witnesses presented a [*2]credibility issue for the Hearing Officer to resolve (see Matter of Jones v Fischer, 69 AD3d1065, 1066 [2010]; Matter ofTelford v Fischer, 67 AD3d 1109, 1110 [2009]). Contrary to petitioner's claim, therecord does not reveal that the Hearing Officer was biased or that the determination at issueflowed from any alleged bias (seeMatter of Gimenez v Artus, 63 AD3d 1461, 1462 [2009]; Matter of Sweet v Woods, 60 AD3d1183 [2009]). Petitioner's remaining contentions have either not been preserved for ourreview or are lacking in merit.
Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.