| Matter of Johnson v Fischer |
| 2011 NY Slip Op 04146 [84 AD3d 1623] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Robert Johnson, 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.
An inmate reported to correction officials that petitioner forced him to engage in sexual acts.As a result, petitioner was charged in a misbehavior report with soliciting sexual acts and havingphysical contact with another inmate. He was found guilty of the charges at the conclusion of atier III disciplinary hearing. The determination was later affirmed on administrative appeal,resulting in this CPLR article 78 proceeding.
The misbehavior report, together with the testimony of the victim of the sexual assault,provide substantial evidence supporting the determination of guilt (see Matter of Sanders v Goord, 47AD3d 1183, 1183 [2008]; Matter ofHoward v Goord, 42 AD3d 867 [2007]). The contrary testimony of petitioner and hisinmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Retamozzo v New York StateDept. of Correctional Servs., 31 AD3d 1083, 1084 [2006]; Matter of Cunningham v Selsky, 29AD3d 1254, 1255 [2006]). Therefore, the determination must be confirmed.[*2]
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.