| Williams v Fischer |
| 2011 NY Slip Op 08515 [89 AD3d 1333] |
| November 23, 2011 |
| Appellate Division, Third Department |
| Matter of Michael Williams, Petitioner, v Brian Fischer, as Commissioner ofCorrections and Community Supervision, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of respondent Commissioner of Corrections andCommunity Supervision which found petitioner guilty of violating certain prison disciplinary rules.
When a correction officer witnessed petitioner exiting a classroom and began to question him,petitioner became argumentative and ignored several direct orders to return to his cell. Petitioner thentook an offensive stance and struck the officer in the chin, after which several officers physicallyrestrained him while he continued to struggle despite numerous orders to stop resisting. As a result,petitioner was served with a misbehavior report charging him with assaulting staff, violent conduct,refusing a direct order, disturbing facility order and being out of place. Following a tier III disciplinaryhearing, petitioner was found guilty of all charges except being out of place. That determination wasaffirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer involved in the incident andsupporting documentation provide substantial evidence to support the determination [*2]of guilt (seeMatter of Williams v Fischer, 84 AD3d 1661, 1662 [2011], lv denied 17 NY3d 711[2011]; Matter of Jackson v Prack, 84AD3d 1660, 1660 [2011]). The testimony of petitioner and his inmate witnesses, who testified thatthe correction officer initiated the physical altercation with petitioner, presented a credibility question tobe resolved by the Hearing Officer (seeMatter of Watson v New York State Dept. of Correctional Servs., 82 AD3d 1435,1435-1436 [2011]; Matter of Barton v NewYork State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]).
Turning to petitioner's procedural contentions, the record reveals that the required extensions wereappropriately requested and granted (seeMatter of Boggs v Martuscello, 84 AD3d 1625, 1626 [2011]; Matter of Tafari v Fischer, 82 AD3d1430, 1430 [2011], lv denied 17 NY3d 702 [2011]). Similarly, our review demonstratesthat the determination of guilt was the result of evidence presented at the hearing, rather than anyalleged hearing officer bias (see Matter ofWeems v Fischer, 82 AD3d 1454, 1456 [2011]; Matter of Mayo v Fischer, 82 AD3d 1421, 1422 [2011], lvdenied 17 NY3d 702 [2011]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.