Opinion
2014-06-19
In the Matter of SANTIAGO RIVERA, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Santiago Rivera, Gouverneur, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Santiago Rivera, Gouverneur, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous 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 was charged in a misbehavior report with creating a disturbance, violent conduct and engaging in an unauthorized assembly. According to the report, petitioner was part of a group of 15 or more inmates that was about to engage in a fight in the exercise yard. The other inmates in the yard had stopped what they were doing and were watching the group when correction officers intervened before the fight began. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. On administrative appeal, the charge of violent conduct was dismissed, but the remainder of the determination was upheld with no change in penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the unusual incident report and the hearing testimony provide substantial evidence supporting the determination of guilt ( see Matter of Hyatt v. Fischer, 110 A.D.3d 1294, 1295, 973 N.Y.S.2d 479 [2013];Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011] ). Petitioner's testimony that he was not involved in the incident and was only walking through the yard on his way to the weightlifting area presented a credibility issue for the Hearing Officer to resolve ( see Matter of Brisman v. Fischer, 92 A.D.3d 1060, 1061, 938 N.Y.S.2d 370 [2012],lv. denied20 N.Y.3d 852, 2012 WL 5907163 [2012];Matter of McLaughlin v. Fischer, 69 A.D.3d 1071, 1072, 893 N.Y.S.2d 364 [2010] ). Further, the misbehavior report contained sufficient detail to enable petitioner to prepare a defense ( see Matter of Curry v. Fischer, 113 A.D.3d 981, 982, 980 N.Y.S.2d 165 [2014];Matter of Poe v. Fischer, 107 A.D.3d 1251, 1252, 967 N.Y.S.2d 510 [2013] ). We have examined petitioner's remaining claims and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., McCARTHY, ROSE, DEVINE and CLARK, JJ., concur.