| Matter of Coleman v Fischer |
| 2011 NY Slip Op 06168 [87 AD3d 778] |
| August 4, 2011 |
| Appellate Division, Third Department |
| In the Matter of Walter Coleman, Petitioner, v BrianFischer, as Commissioner 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.
While a female correction officer was making her rounds on petitioner's dorm, she heardheavy breathing coming from petitioner's cell and observed petitioner staring at her and makingrapid movements with his hand under a blanket leading her to conclude that he was masturbating.She ordered petitioner to stay in his cell while she went to report the incident. Petitioner left hiscell and approached the officer in the day room where he attempted to explain his conduct, atwhich point she directed him to return to his cell. Thereafter, petitioner was charged in amisbehavior report with engaging in lewd conduct and refusing a direct order. He was foundguilty of the charges following a tier III disciplinary hearing and the determination was affirmedon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report provides substantial evidence supporting thedetermination of guilt (see Matter ofDarshan v Bango, 83 AD3d 1302 [2011]; Matter of Johnson v Goord, 42 AD3d 626, 627 [2007]). Petitioner'sdenial of the charges and claim that the misbehavior report was fabricated presented a credibilityissue for the Hearing Officer to resolve (see Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lvdenied 15 NY3d 714 [2010]; [*2]Matter of Sital v Fischer, 72 AD3d 1306, 1307 [2010],lv dismissed 15 NY3d 823 [2010]). Contrary to petitioner's assertion, we find nothing inthe record to indicate that the Hearing Officer was biased or that the determination flowed fromany alleged bias (see Matter of Abreu vBezio, 78 AD3d 1341, 1342 [2010]; Matter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]), and thedisposition included an adequate statement of evidence relied upon (see 7 NYCRR 254.7[a] [5]). Petitioner's challenge to the timeliness of the hearing has not been preserved for ourreview due to his failure to raise it at the hearing (see Matter of Taylor v Fischer, 80 AD3d 1037, 1037 [2011]; Matter of Rosario v Goord, 25 AD3d841, 842 [2006]). Therefore, the determination must be confirmed.
Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.