| Matter of Bridgeforth v Fischer |
| 2010 NY Slip Op 08413 [78 AD3d 1401] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Otis Michael Bridgeforth, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
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 respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
Petitioner, a prison inmate, was served with a misbehavior report alleging various disciplinaryinfractions after he engaged in a fight with another inmate and, after ignoring several direct orders tocease, the two inmates had to be separated by force. Following a tier III disciplinary hearing, petitionerwas found guilty of assaulting an inmate, engaging in violent conduct and refusing a direct order. Thatdetermination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, supporting documentation and testimony of one of thecorrection officers involved in the incident provide substantial evidence to support the determination ofguilt (see Matter of Bermudez v Fischer,71 AD3d 1361, 1361 [2010], lv denied 15 NY3d 702 [2010]; Matter of Lozada v Cook, 67 AD3d1232, 1233 [2009], lv denied 14 NY3d 706 [2010]). Petitioner's contention that he wasdefending himself as the victim of an attack by several gang members raised a question of credibility tobe resolved by the Hearing Officer (seeMatter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Hernandez v Bezio, 73 AD3d1406, 1407 [2010]). Petitioner's claim that he was denied a videotape of the incident has no merit,as the record establishes that no videotape existed (see Matter of Parker v Fischer, 70 [*2]AD3d 1086, 1087 [2010]; Matter of Chavis v Goord, 58 AD3d954, 955 [2009]). Finally, we disagree that the penalty assessed was excessive as it was not so severeas to shock one's sense of fairness (seeMatter of Thanh Giap v Fischer, 69 AD3d 1079, 1080 [2010]).
We have examined petitioner's remaining contentions and find them to be without merit.
Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.