| Matter of Crenshaw v Fischer |
| 2011 NY Slip Op 06438 [87 AD3d 1189] |
| September 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of William Crenshaw, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh 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 petitioner was being released from the dormitory entrance to get his legal mail, acorrection officer noticed a suspicious bulge in his jacket and told him to lift it. Althoughpetitioner initially refused, he later complied, at which point the officer noticed that petitioner'spants were sitting far below his waist, an issue for which he had previously been counseled.When the officer directed petitioner to pull up his pants, petitioner responded "kiss my a**." Theofficer then gave petitioner a directive to return to the dormitory, which he ignored. Petitionerwas eventually escorted from the law library to the special housing unit. As a result of theforegoing, petitioner was charged in a misbehavior report with leaving an assigned area withoutauthorization, being out of place, violating frisk procedures, violating a facility movementregulation, refusing a direct order and harassing an employee. Later that day, he was charged in asecond misbehavior report with losing state property after his cell was packed up and his stateissued razor was missing. A tier III disciplinary hearing was subsequently conducted on thecharges contained in both reports. Petitioner was found guilty of all charges and thedetermination was upheld on administrative appeal. This CPLR article 78 proceeding ensued.[*2]
We confirm. The misbehavior report, together with thetestimony of the correction officer who prepared it, support that part of the determination findingpetitioner guilty of the charges contained in the first misbehavior report (see Matter of Vaello v Connolly, 84AD3d 1624, 1625 [2011]; Matter ofWahhab v Fischer, 77 AD3d 996, 997 [2010]). As for that part of the determinationfinding petitioner guilty of the charge contained in the second misbehavior report, the detailedmisbehavior report itself constitutes substantial evidence supporting that charge (see Matter of Johnson v Goord, 42AD3d 626, 627 [2007]; Matter ofTafari v Selsky, 38 AD3d 1079, 1079 [2007], lv denied 8 NY3d 816 [2007]).Petitioner's claim that the misbehavior reports were written in retaliation for a grievance he hadfiled presented a credibility issue for the hearing officer to resolve (see Matter of Cody v Fischer, 84 AD3d1651, 1651 [2011]; Matter of Davisv Fischer, 83 AD3d 1356, 1357 [2011]). Petitioner's remaining contentions have beenconsidered and are lacking in merit.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.