Opinion
2012-08-2
In the Matter of Skyler JACKSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
Skyler Jackson, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Skyler Jackson, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer observed petitioner retrieve an unknown object from an unidentified cell and ordered him to put his hands on the wall, at which point petitioner assaulted the officer. Other officers responded to the physical altercation that ensued and petitioner was eventually restrained. Immediately after the incident, a razor-type weapon was found on the floor nearby. As a result, petitioner was charged in three separate misbehavior reports with several disciplinary rule violations. At the conclusion of a tier III disciplinary hearing covering all of the reports, petitioner was found guilty of possessing a weapon, refusing a frisk, two counts of assaulting staff and two counts of engaging in violent conduct. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. Substantial evidence, consisting of the three misbehavior reports, related documentation, and the considerable testimony adduced at the hearing, supports the determination finding petitioner guilty of the charges at issue ( see Matter of Mungo v. Director of Special Hous. & Inmate Disciplinary Programs, 93 A.D.3d 1057, 1057, 940 N.Y.S.2d 696 [2012],appeal dismissed19 N.Y.3d 919, 2012 WL 2380243 [June 26, 2012];Matter of Terrence v. Fischer, 64 A.D.3d 1110, 884 N.Y.S.2d 277 [2009] ). Any claimed inconsistencies in the testimony presented credibility issues for the Hearing Officer to resolve ( see Matter of Mungo v. Director of Special Hous. & Inmate Disciplinary Programs, 93 A.D.3d at 1058, 940 N.Y.S.2d 696). We find no merit to petitioner's claim that he was improperly denied the right to have certain inmates testify at the hearing. The record discloses that all of these individuals, except for one, refused to testify. Inasmuch as the assistant explained that she spoke with the inmates who refused and they claimed to have no knowledge of the incident, the reason for their refusal is clear from the record ( see Matter of Hill v. Selsky, 19 A.D.3d 64, 67, 795 N.Y.S.2d 794 [2005] ). As for the inmate who initially agreed to testify but later changed his mind, he executed a refusal form and the Hearing Officer personally interviewed him to ascertain that his refusal was genuine ( see Matter of Gonzalez v. Venettozzi, 94 A.D.3d 1313, 1314, 942 N.Y.S.2d 686 [2012];Matter of Jackson v. Fischer, 87 A.D.3d 775, 776, 928 N.Y.S.2d 613 [2011] ). Furthermore, upon reviewing the record, we find nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Jackson v. Fischer, 87 A.D.3d at 776, 928 N.Y.S.2d 613;Matter of Kalwasinski v. Bezio, 80 A.D.3d 1068, 1069, 914 N.Y.S.2d 695 [2011] ). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.