Opinion
2011-09-15
In the Matter of Wayne GARDINE, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, et al., Respondents.
Wayne Gardine, Ossining, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Wayne Gardine, Ossining, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was ordered to provide a urine specimen and, after he handed the specimen to a correction officer, he became agitated, knocked the specimen from the officer's hands and struck the officer in the head. Petitioner was placed in mechanical restraints and escorted to the special housing unit at which point the officer who received the specimen gathered the remainder of it and secured it in the urinalysis refrigerator. As a result of this incident, petitioner was charged in a misbehavior report with engaging in violent conduct, interfering with an employee, assaulting staff and failing to comply with urinalysis testing procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers who were involved in the incident and assisted in restraining petitioner, provide substantial evidence supporting the determination of guilt ( see Matter of Sital v. Fischer, 73 A.D.3d 1348, 1349, 901 N.Y.S.2d 403 [2010], lv. denied 15 N.Y.3d 707, 908 N.Y.S.2d 160, 934 N.E.2d 894 [2010]; Matter of Edwards v. Bezio, 69 A.D.3d 1077, 1077–1078, 891 N.Y.S.2d 673 [2010] ). Petitioner's denial of any wrongdoing and claim that he was assaulted presented a credibility issue for the Hearing Officer to resolve ( see Matter of Malik v. Bezio, 76 A.D.3d 1128, 1128, 908 N.Y.S.2d 138 [2010]; Matter of Partee v. Bezio, 67 A.D.3d 1224, 1224–1225, 890 N.Y.S.2d 139 [2009], lv. denied 14 N.Y.3d 702, 898 N.Y.S.2d 97, 925 N.E.2d 102 [2010] ). Therefore, we find no reason to disturb the determination at issue.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.