| Matter of Hardy v Smith |
| 2011 NY Slip Op 06169 [87 AD3d 779] |
| August 4, 2011 |
| Appellate Division, Third Department |
| In the Matter of Victor Hardy, Petitioner, v J.T. Smith, asSuperintendent of Shawangunk Correctional Facility, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of respondent which found petitionerguilty of violating a prison disciplinary rule.
Based upon an investigation, it was determined that petitioner punched another inmate in theback of the head and he was charged in a misbehavior report with violent conduct. Petitioner wasfound guilty of that charge after a tier II disciplinary hearing and that determination was affirmedon administrative appeal, prompting this CPLR article 78 proceeding.
We confirm. The misbehavior report, along with the testimony of the victim and thecorrection officer who authored the misbehavior report, provide substantial evidence to supportthe determination of guilt (see Matter ofFrance v Bezio, 78 AD3d 1357, 1357 [2010]; Matter of McDaniels v Bezio, 76 AD3d 1129, 1129 [2010]).Petitioner's protestations of innocence, his theory that he was being accused in retaliation and thetestimony of his inmate witnesses presented questions of credibility to be resolved by the HearingOfficer (see Matter of Lovett vSmith, 80 AD3d 1039, 1040 [2011]; Matter of Perez v Fischer, 69 AD3d 1279, 1279-1280 [2010]).Turning to petitioner's procedural contentions, even if the Hearing Officer erred in failing todisclose the victim's medical records, such error was harmless in that they were not [*2]considered in making the determination (see Matter of Abdul-Khaliq v Goord,34 AD3d 872, 872-873 [2006]; Matter of Huggins v Goord, 28 AD3d 891, 891-892 [2006]).Finally, our review of the record satisfies us that the disposition of guilt resulted from theevidence presented, rather than any alleged hearing officer bias (see Matter of Weems v Fischer, 82AD3d 1454, 1456 [2011]; Matter ofMayo v Fischer, 82 AD3d 1421, 1422 [2011], lv denied 17 NY3d 702 [2011]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Mercure, J.P., Rose, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.