Opinion
2011-08-4
In the Matter of Walter COLEMAN, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
Walter Coleman, Gowanda, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Walter Coleman, Gowanda, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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 certain prison disciplinary rules.
While a female correction officer was making her rounds on petitioner's dorm, she heard heavy breathing coming from petitioner's cell and observed petitioner staring at her and making rapid movements with his hand under a blanket leading her to conclude that he was masturbating. She ordered petitioner to stay in his cell while she went to report the incident. Petitioner left his cell and approached the officer in the day room where he attempted to explain his conduct, at which point she directed him to return to his cell. Thereafter, petitioner was charged in a misbehavior report with engaging in lewd conduct and refusing a direct order. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report provides substantial evidence supporting the determination of guilt ( see Matter of Darshan v. Bango, 83 A.D.3d 1302, 1302, 920 N.Y.S.2d 739 [2011]; Matter of Johnson v. Goord, 42 A.D.3d 626, 627, 838 N.Y.S.2d 275 [2007] ). Petitioner's denial of the charges and claim that the misbehavior report was fabricated presented a credibility issue for the Hearing Officer to resolve ( see Matter of Parra v. Fischer, 76 A.D.3d 724, 725, 907 N.Y.S.2d 345 [2010], lv. denied 15 N.Y.3d 714, 2010 WL 4823841 [2010]; Matter of Sital v. Fischer, 72 A.D.3d 1306, 1307, 904 N.Y.S.2d 228 [2010], lv. dismissed 15 N.Y.3d 823, 908 N.Y.S.2d 156, 934 N.E.2d 890 [2010] ). Contrary to petitioner's assertion, we find nothing in the record to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Abreu v. Bezio, 71 A.D.3d 1341, 1342, 897 N.Y.S.2d 549 [2010]; Matter of Truman v. Fischer, 75 A.D.3d 1019, 1020, 907 N.Y.S.2d 343 [2010] ), and the disposition included an adequate statement of evidence relied upon ( see 7 NYCRR 254.7[a] [5] ). Petitioner's challenge to the timeliness of the hearing has not been preserved for our review due to his failure to raise it at the hearing ( see Matter of Taylor v. Fischer, 80 A.D.3d 1037, 1037, 914 N.Y.S.2d 691 [2011]; Matter of Rosario v. Goord, 25 A.D.3d 841, 842, 807 N.Y.S.2d 442 [2006] ). Therefore, the determination must be confirmed.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.