Opinion
2012-11-29
In the Matter of David A. BURR, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
David A. Burr, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
David A. Burr, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., MERCURE, SPAIN, MALONE JR. 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 certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with assault on a staff member, violent conduct and refusing a direct order. The charges stemmed from an incident wherein petitioner slapped a sergeant during an interview in the sergeant's office regarding a complaint petitioner had filed. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty of 10 months in the special housing unit was imposed. This determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, use of force report and testimony of staff involved in the incident provide substantial evidence supporting the finding of guilt on each charge ( see Matter of Carrasco v. Fischer, 96 A.D.3d 1315, 1316, 947 N.Y.S.2d 219 [2012]; Matter of Irwin v. Fischer, 85 A.D.3d 1336, 1337, 925 N.Y.S.2d 256 [2011],lv. denied17 N.Y.3d 712, 2011 WL 4916498 [2011] ). Petitioner's conflicting version of events presented a credibility issue for the Hearing Officer to resolve ( see Matter of Cornelius v. Fischer, 98 A.D.3d 779, 780, 949 N.Y.S.2d 804 [2012];Matter of Carrasco v. Fischer, 96 A.D.3d at 1316, 947 N.Y.S.2d 219).
With regard to petitioner's numerous procedural complaints, the record confirms that petitioner received adequate employee assistance, and the hearing was commenced and completed in accordance with appropriate extensions ( see Matter of Cruz v. Fischer, 94 A.D.3d 1296, 1297, 942 N.Y.S.2d 673 [2012];Matter of Bernier v. Goord, 3 A.D.3d 803, 803, 770 N.Y.S.2d 903 [2004] ). Petitioner's complaints regarding the Hearing Officer's denial of certain witnesses and documentary evidence are not substantiated by the record and, inasmuch as petitioner was present for the entire hearing and was only excluded from the dispositional phase after becoming disruptive, we find no error ( see Matter of Carrasco v. Fischer, 96 A.D.3d at 1316, 947 N.Y.S.2d 219;Matter of Williams v. Bezio, 79 A.D.3d 1556, 1557, 916 N.Y.S.2d 247 [2010],lv. denied16 N.Y.3d 710, 2011 WL 1236298 [2011] ). Petitioner's remaining contentions have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.