| Matter of Jackson v Prack |
| 2011 NY Slip Op 04334 [84 AD3d 1660] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Daryl Jackson, Petitioner, v Albert Prack,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Lahtinen, 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged with violating several prison disciplinary rules in connection with aphysical altercation involving him and three correction officers. Following a tier III disciplinaryhearing, petitioner was found guilty of all charges. Upon administrative review, thedetermination was upheld, with a modification of the penalty imposed. Petitioner thencommenced this CPLR article 78 proceeding challenging that determination.
To the extent that petitioner's brief raises an issue of substantial evidence, we find that themisbehavior report, unusual incident report with supporting documentation and the testimony ofthe correction officers involved provide the quantum of proof necessary to support thedetermination (see Matter of Barton vNew York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Flemming v Fischer, 74AD3d 1693, 1694 [2010]). Conflicting testimony presented by petitioner and some of theinmate witnesses presented a credibility [*2]determination to beresolved by the Hearing Officer (see Matter of Barton v New York State Dept. ofCorrectional Servs., 81 AD3d at 1030; Matter of Flemming v Fischer, 74 AD3d at1694).
Turning to petitioner's procedural objections, we find that petitioner was afforded a fairhearing. We do not agree with petitioner's contentions that the Hearing Officer improperlycurtailed his questioning of the witnesses and denied his request to present certain documentaryevidence as the questions and documents that petitioner sought to present related to earlier eventsand not to the incident in question (seeMatter of Barca v Fischer, 80 AD3d 1038, 1038-1039 [2011], lv denied 16NY3d 711 [2011]; Matter of Walker vFischer, 71 AD3d 1309, 1310 [2010], appeal dismissed 14 NY3d 912 [2010]).Nor does the record support petitioner's claim that the Hearing Officer was biased. Petitioner wasable to examine the many witnesses called, review photographs of the injuries sustained by himand the correction officers and offer his version of the events and interpretation of the evidence atlength. Based upon this record, there is no reason to conclude that the determination was basedupon anything other than the evidence presented (see Matter of Mayo v Fischer, 82 AD3d 1421, 1422 [2011]; Matter of Harvey v Bradt, 81 AD3d1003, 1004 [2011]). Petitioner's remaining contentions have been considered and found tobe without merit.
Mercure, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.