| Matter of Davis v Fischer |
| 2011 NY Slip Op 03325 [83 AD3d 1356] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ramal Davis, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 was standing in front of petitioner's cell delivering a food tray whenpetitioner threw the tray back at the officer causing the contents to spill all over him. Petitionerthen proceeded to shove the officer in an attempt to exit his cell, at which point the officerpushed the inmate to the back of the cell until assistance arrived and petitioner was placed inmechanical restraints. As a result of this incident, petitioner was charged in a misbehavior reportwith assaulting staff, wasting food, committing an unhygienic act and engaging in violentconduct. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing.The determination was later affirmed on administrative appeal with a modified penalty. ThisCPLR article 78 proceeding ensued.
We confirm. Substantial evidence consisting of the misbehavior report, testimony of thecorrection officer who authored it and related documentation supports the determination of guilt(see Matter of Cruz v Goord, 41AD3d 1122, 1122-1123 [2007]; Matter of Vines v Goord, 19 AD3d 951, 952 [2005]). Petitioner'sclaim that the report was written in retaliation for a prior complaint that he had made about acorrection counselor presented a credibility issue for the [*2]Hearing Officer to resolve (see Matter of West v Fischer, 73 AD3d 1301, 1301 [2010]; Matter of Smith v Fischer, 60 AD3d1230 [2009]). Moreover, while the Hearing Officer referenced a videotape of a differentincident in his disposition, this error does not require annulment of the determination given thatsuch videotape was irrelevant to the charges at issue and it was established at the hearing that novideotape of the incident in question existed (see Matter of Bridgeforth v Fischer, 78 AD3d 1401, 1401-1402[2010]; Matter of Tafari v Selsky,77 AD3d 992, 992 [2010], lv dismissed 16 NY3d 783 [2011]).
Petitioner's remaining contentions have been considered and are lacking in merit.
Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.