| Matter of Povoski v Fischer |
| 2012 NY Slip Op 01706 [93 AD3d 963] |
| March 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of Frank J. Povoski, Jr., Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 Superintendent ofClinton Correctional Facility which found petitioner guilty of violating certain prison disciplinaryrules.
Petitioner was charged in a misbehavior report with being out of place and leaving anassigned work area. According to the report, after attending an inmate liaison committee meeting,petitioner went to his cellblock instead of returning to his assigned work program at the facilitylaw library. Following a tier II disciplinary hearing, petitioner was found guilty of both charges.The determination was upheld on administrative appeal and this CPLR article 78 proceedingensued.
The detailed misbehavior report provides substantial evidence to support the determinationof guilt (see Matter of Crenshaw vFischer, 87 AD3d 1189, 1189 [2011]; Matter of Gillard v White, 79 AD3d 1466, 1466 [2010]). Notably,while petitioner disputed the correction officer's testimony that petitioner did not have permissionto be out of place, this presented a credibility issue for the Hearing Officer to resolve (see Williams v Fischer, 89 AD3d1333, 1333 [2011]). Moreover, contrary to petitioner's contention, any gaps or omissions inthe hearing transcript did not render it so incomplete as to preclude meaningful review (see Matter of [*2]Machicote v Bezio, 87 AD3d 763, 763 [2011]).
We have examined the remaining issues raised by petitioner, and find them to be eitherunpreserved or without merit.
Mercure, A.P.J., Rose, Spain, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.