| Matter of Barclay v Zolkosky |
| 2010 NY Slip Op 08031 [78 AD3d 1343] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of H. Patrick Barclay, Petitioner, v B. Zolkosky etal., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of the Superintendent of Elmira CorrectionalFacility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, became incensed that an inmate employee in the mess hall was touchingfood without wearing gloves and berated him with profane language and then threatened him. As aresult, petitioner was served with a misbehavior report and, following a tier II disciplinary hearing, wasfound guilty of engaging in violent conduct, making threats, creating a disturbance, refusing a directorder and failing to follow mess hall procedures. The determination was upheld on administrativeappeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, along with petitioner's testimony at the hearing,provide substantial evidence of petitioner's guilt (see Matter of Sterling v Fischer, 75 AD3d 709 [2010]; Matter of Davis v Bezio, 74 AD3d1615 [2010]). Petitioner's claim that he was denied witnesses is without merit, as the recordreveals that petitioner stated several times during the hearing that he did not wish to call any witnesses(see Matter of Wilson v Artus, 71 AD3d1294 [2010]; Matter of Dixon vBrown, 62 AD3d 1223, 1224 [2009], lv denied 13 NY3d [*2]704 [2009]). Likewise, it cannot be said that petitioner was denieddocumentary evidence in the form of a videotape of the incident where no such tape existed (see Matter of Bornstorff v Bezio, 73 AD3d1397, 1398 [2010]; Matter of Lara vDubray, 52 AD3d 1143, 1143 [2008]). Lastly, petitioner's differing version of events, hisclaim that his hearing loss affected his ability to hear correction officers' orders and his assertion that themisbehavior report was given to him in retaliation for his successful challenge to another misbehaviorreport presented issues of credibility to be resolved by the Hearing Officer (see Matter of Devaughn v Bezio, 75 AD3d673 [2010]; Matter of Morusma vFischer, 74 AD3d 1675 [2010]).
Petitioner's remaining contentions, to the extent preserved, have been determined to be withoutmerit.
Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.