Opinion
2013-11-7
In the Matter of Patrick GUILLORY, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Patrick Guillory, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Patrick Guillory, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was charged in a misbehavior report with making a threat. The charge arose out of an incident where petitioner was being interviewed by an investigating officer in reference to a grievance that petitioner had filed when he became agitated and threatened to assault the officer. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. After the penalty was modified by facility officials, the determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and the testimony of its author provide substantial evidence supporting the determinationof guilt ( see Matter of Lewis v. Fischer, 101 A.D.3d 1317, 1317, 955 N.Y.S.2d 457 [2012];Matter of Ventimiglia v. New York State Dept. of Correctional Servs., 94 A.D.3d 1327, 1328, 942 N.Y.S.2d 699 [2012] ). Petitioner's contention that the misbehavior report was issued in retaliation for several grievances that he had filed created a credibility issue for the Hearing Officer to resolve ( see Matter of Blackwell v. Fischer, 106 A.D.3d 1346, 1346, 965 N.Y.S.2d 256 [2013];Matter of Sorrentino v. Fischer, 101 A.D.3d 1210, 1210–1211, 955 N.Y.S.2d 290 [2012],lv. denied20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2012] ). Further, petitioner's claim that he was denied access to a videotape of the interview with the investigator is without merit as the record indicates that no such videotape existed ( see Matter of Applewhite v. Goord, 45 A.D.3d 1112, 1112, 846 N.Y.S.2d 457 [2007],lv. denied10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008];Matter of Griffin v. Goord, 43 A.D.3d 591, 592, 840 N.Y.S.2d 498 [2007] ). Finally, there is no support in the record for petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Fowler v. Fischer, 106 A.D.3d 1344, 1345, 965 N.Y.S.2d 254 [2013],lv. denied21 N.Y.3d 865, 2013 WL 4838763 [2013];Matter of Fisher v. Fischer, 105 A.D.3d 1286, 1286, 963 N.Y.S.2d 606 [2013] ). Petitioner's remaining claims have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.