| Matter of Cooper v Prack |
| 2011 NY Slip Op 05388 [85 AD3d 1470] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anthony Cooper, Petitioner, v Albert Prack, asActing Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
After he was removed from his cell for visitation, petitioner was ordered to stand facing thewindows near a gate while correction officers were getting other inmates out of their cells forvisitation. When one of those inmates approached petitioner, petitioner turned to kick the inmatebut the inmate blocked the kick with his hands. As a result, petitioner was charged in amisbehavior report with refusing a direct order, engaging in violent conduct and fighting.Following a tier III disciplinary hearing, he was found guilty of the former two charges but notthe latter. The determination was later affirmed on administrative appeal, resulting in this CPLRarticle 78 proceeding.
We confirm. The misbehavior report, together with the testimony of the correction officerwho authored it, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69AD3d 1071, 1072 [2010]; Matter ofLarkins v Goord, 27 AD3d 810 [2006]). Petitioner's denial of any misconduct and claimthat the misbehavior report [*2]was fabricated presented acredibility issue for the Hearing Officer to resolve (see Matter of McLaughlin v Fischer,69 AD3d at 1072; Matter of Lamage v Goord, 285 AD2d 724, 724 [2001], lvdismissed 97 NY2d 639 [2001]). In addition, there is nothing in the record to suggest that theHearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Nelson v Goord, 33AD3d 1135, 1136 [2006]). Petitioner's remaining contentions, to the extent that they areproperly before us, have been considered and are unavailing.
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.