| Matter of McGowan v Fischer |
| 2011 NY Slip Op 06961 [88 AD3d 1038] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Joseph McGowan, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Egan Jr., 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.
A correction officer noticed that petitioner was acting in a suspicious manner and directedhim to come to the front of the company. Petitioner refused and ran back to his cell followed bytwo correction officers. When the officers reached petitioner's cell, one of them noticed that thetoilet had just been flushed, and he ordered petitioner out of the cell. After petitioner exited thecell, the officer found a plexiglas weapon on petitioner's bed and bottles of homemade alcohol ona ledge above the cell door. As a result, petitioner was charged in a misbehavior report withrefusing a direct order, possessing a weapon and possessing alcohol. Following a tier IIIdisciplinary hearing, he was found guilty of the charges. Petitioner's subsequent administrativeappeal proved unsuccessful, prompting him to commence this CPLR article 78 proceeding tochallenge respondent's determination.
We confirm. Substantial evidence, consisting of the misbehavior report, documentary [*2]evidence and extensive testimony adduced at the hearing, supportsthe determination of guilt (see Matter ofSorrentino v Fischer, 78 AD3d 1354, 1355 [2010]; Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]). Anydiscrepancies in the time of the incident noted in the log book and the other documents wereadequately explained by the keeper of the log book, who stated that he inadvertently wrote downthe wrong time due to the fact that the battery in the clock he relied upon was dead (see Matter of Smith v Fischer, 54AD3d 1083, 1084 [2008]; Matter of Muniz v Selsky, 301 AD2d 769, 770 [2003],lv denied 99 NY2d 511 [2003]). Moreover, while petitioner maintained that he wasinnocent of the charges and was "set up," this presented a credibility issue for the Hearing Officerto resolve (see Matter of Nimmons vFischer, 68 AD3d 1311 [2009]). Furthermore, although petitioner asserts that themisbehavior report should have been endorsed by the correction officer present during theincident who did not author the report (see 7 NYCRR 251-3.1 [b]), petitioner has notdemonstrated that he was prejudiced by the lack of the officer's endorsement given that theofficer testified at the hearing (seeMatter of Pante v Goord, 73 AD3d 1394, 1395 [2010]; Matter of Williams v Goord, 31 AD3d1086, 1087 [2006]). Finally, upon reviewing the record, we reject petitioner's claim that theHearing Officer did not conduct a fair and impartial hearing and find nothing to indicate that theoutcome of the hearing flowed from any alleged bias (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]; Matter of Quinney v Selsky, 18 AD3d1082, 1083 [2005]). Petitioner's remaining contentions, to the extent that they are properlybefore us, have been considered and are unavailing.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.