Opinion
2014-04-24
In the Matter of Shawn EVANS, Petitioner, v. Brian S. FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Shawn Evans, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Shawn Evans, Auburn, 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.
Petitioner commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of harassment and making threats. Contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt ( see Matter of Tuitt v. Martuscello, 106 A.D.3d 1355, 1356, 965 N.Y.S.2d 669 [2013],lv. denied21 N.Y.3d 865, 973 N.Y.S.2d 583, 996 N.E.2d 502 [2013];Matter of Burr v. Fischer, 95 A.D.3d 1538, 1538, 943 N.Y.S.2d 920 [2012],lv. denied19 N.Y.3d 811, 951 N.Y.S.2d 721, 976 N.E.2d 250 [2012] ). Petitioner's assertion that the misbehavior report was retaliatory created a credibility issue for the Hearing Officer to resolve ( see Matter of Deleon v. Prack, 111 A.D.3d 1204, 1204, 975 N.Y.S.2d 701 [2013] ).
Petitioner's remaining contentions have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ., concur.