| Matter of Colon v Fischer |
| 2012 NY Slip Op 06239 [98 AD3d 1176] |
| September 20, 2012 |
| Appellate Division, Third Department |
| In the Matter of Cristian Colon, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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.
After confidential information was received by a correction officer indicating that petitionerwas a participant in a brutal assault upon another inmate, petitioner was charged in a misbehaviorreport with assault, possessing a weapon and violent conduct. Following a tier III disciplinaryhearing, he was found guilty of all charges. That determination was affirmed on administrativeappeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who prepared it andthe confidential testimony and documents found credible by the Hearing Officer providesubstantial evidence supporting the determination of guilt (see Matter of Matthews v Fischer, 95 AD3d 1529 [2012]; Matter of Sullivan v Fischer, 95 AD3d1514 [2012]). Although petitioner and his inmate witness denied that petitioner participatedin the assault, this created a credibility issue for the Hearing Officer to resolve (see Matter of Cruz v Fischer, 94 AD3d1296, 1297 [2012]).[*2]
Moreover, we are unpersuaded by petitioner's proceduralclaims. The fact that the unusual incident report requested by petitioner was not completed untilafter his hearing began cannot be attributed to inadequate employee assistance (see Matter ofMaya v Goord, 272 AD2d 724, 725 [2000], lv denied 96 NY2d 704 [2001]). In anyevent, inasmuch as the Hearing Officer read the relevant portions to petitioner at the hearing, noprejudice has been shown (see Matter ofOrtiz v Fischer, 91 AD3d 1006 [2012]). Nor do we find that the Hearing Officer erred indenying witnesses who could not provide relevant or material proof (see Matter of Burr v Fischer, 95 AD3d1538 [2012], lv denied 19 NY3d 811 [2012]). Lastly, our review of the recorddemonstrates that petitioner's guilt was premised upon the evidence presented at the hearing,rather than any alleged hearing officer bias (see Matter of White v Fischer, 95 AD3d 1582 [2012]; Matter ofMatthews v Fischer, 95 AD3d at 1529).
We have examined petitioner's remaining claims, including his challenge to the denial of hisrequest for the confidential informant's testimony, and find them to be unpersuasive.
Peters, P.J., Mercure, Spain, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.