| Matter of Barclay v Knowles |
| 2010 NY Slip Op 09596 [79 AD3d 1550] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of H. Patrick Barclay, Petitioner, v J. Knowles, asCorrection Officer, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the 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 variousdisciplinary infractions after an incident in which he allegedly stood up in a crowded mess hall, threw hisfood tray in the air and engaged in an obscenity-laced tirade directed at another inmate. Following a tierIII disciplinary hearing, petitioner was found guilty of engaging in violent conduct, creating adisturbance, wasting food and violating mess hall seating procedures. After his administrative appealwas unsuccessful, petitioner commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, authored by a correction officer who observed theincident, along with the testimony of another correction officer who was present, provide substantialevidence to support the determination of guilt (see Matter of Lynch v Fischer, 76 AD3d 734, 735 [2010]; Matter of Owens v Fischer, 75 AD3d1020, 1021 [2010]). Petitioner's contention that the actions he took were in self-defensepresented a credibility issue to be [*2]resolved by the Hearing Officer(see Matter of Stone v Fischer, 62AD3d 1064, 1065 [2009]).
Turning to petitioner's procedural arguments, we note first that a review of the record demonstratesthat the hearing was completed in a timely fashion, with the proper extensions granted (see Matter of Reese v Bezio, 75 AD3d1029, 1030 [2010]; Matter of Morusmav Fischer, 74 AD3d 1675, 1675-1676 [2010]). Contrary to petitioner's contention that hewas denied the right to present documentary evidence, the record reveals that no videotape recordingof the incident was available (see Matter ofParker v Fischer, 70 AD3d 1086, 1087 [2010]; Matter of Chavis v Goord, 58AD3d 954, 955 [2009]). Further, petitioner's claim that he was denied the right to call a certain witnessis unpreserved for our review due to his failure to raise an objection during the hearing (see Matter of Lopez v Fischer, 69 AD3d1076, 1077 [2010]).
The Hearing Officer did not err in taking testimony from two inmate witnesses outside ofpetitioner's presence, considering that petitioner was confined to the special housing unit due to theincident and the tape-recorded testimony was played during the hearing (see 7 NYCRR 254.5[b]; Matter of Parkinson v Selsky, 49AD3d 985, 986 [2008]). Although the hearing transcript did contain some gaps, they were not sopervasive as to preclude meaningful judicial review (see Matter of Reese v Bezio, 75 AD3d at1030). Finally, the record demonstrates that the finding of guilt resulted from the evidence presented,rather than any hearing officer bias (see id.).
The remainder of petitioner's contentions have been reviewed and found to be either unpreservedor without merit.
Cardona, P.J., Mercure, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.