| Matter of Cruz v Fischer |
| 2012 NY Slip Op 02911 [94 AD3d 1296] |
| April 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of Anthony Cruz, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 inmates were returning from the recreation yard, a correction sergeant observed oneinmate with a large gash on the left side of his face. This inmate stated that he was cut by anunknown inmate while exiting the yard. During the ensuing investigation, the sergeant learnedthrough confidential sources that an individual matching petitioner's description had perpetratedthe attack and then discarded the weapon in a water drain by the soccer field. The weapon, whichconsisted of a broken pencil with an embedded razor, was later recovered from the describedlocation and had blood, tissue and hair on it. As a result of this incident, petitioner was chargedin a misbehavior report with assaulting an inmate, possessing a weapon, engaging in violentconduct and possessing an altered item. He was found guilty of the charges at the conclusion of atier III disciplinary hearing and the determination was affirmed on administrative review. ThisCPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimonyof the author of the misbehavior report and the confidential information considered by theHearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Houston v Fischer, 69AD3d 1086, 1086 [2010]; Matter ofAdorno v Goord, 35 AD3d 930, 931 [2006]). The contrary testimony of petitioner andhis inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v Fischer, 84AD3d 1623 [2011]; Matter ofBarton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]).Moreover, the extension to commence the hearing was timely obtained within seven days of thedate of petitioner's confinement and was needed due to the unavailability of the Hearing Officerand to enable petitioner to receive proper assistance prior to the commencement of the hearing(see 7 NYCRR 251-5.1 [a]; Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]; Matter of Berry v Portuondo, 6 AD3d848, 849 [2004]). Notably, the hearing was properly completed within the time granted inthe extension. Petitioner's numerous remaining contentions are either unpreserved for our reviewor are lacking in merit.
Mercure, J.P., Rose, Spain, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.