Opinion
2012-11-21
In the Matter of Terry CICIO, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Terry Cicio, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Terry Cicio, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., MERCURE, SPAIN, STEIN and McCARTHY, JJ.
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 which found petitioner guilty of violating a prison disciplinary rule.
Petitioner refused a correction officer's order to hand over his feed-up tray, claiming there was glass and/or rocks in his food. The officer determined that petitioner's claim was valid. Petitioner eventually gave the tray to a sergeant. Shortly thereafter, the officer took petitioner to be examined by a nurse, and petitioner threatened physical violence against the officer. Consequently, he was charged in a misbehavior report with refusing a direct order, violating mess hall policies, interfering with an employee and making threats. Following a tier III disciplinary hearing, he was found guilty only of the charge of making threats. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt ( see Matter of Galdamez v. Taylor, 31 A.D.3d 934, 934, 817 N.Y.S.2d 774 [2006]; Matter of Jamison v. Goord, 8 A.D.3d 860, 860, 778 N.Y.S.2d 567 [2004] ). Although petitioner denied threatening the officer, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Vidal–Ortiz v. Fischer, 84 A.D.3d 1627, 1628, 923 N.Y.S.2d 312 [2011];Matter of Haynes v. Bezio, 73 A.D.3d 1295, 1296, 903 N.Y.S.2d 165 [2010] ). The videotape viewed at the hearing is inconclusive and does not support petitioner's defense. Furthermore, upon reviewing the record, we find nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Jackson v. Fischer, 87 A.D.3d 775, 776, 928 N.Y.S.2d 613 [2011];Matter of Norris v. Fischer, 71 A.D.3d 1211, 1213, 897 N.Y.S.2d 534 [2010] ). Petitioner's remaining contentions have been considered and are unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.