Opinion
520883.
12-17-2015
In the Matter of Gill TERRENCE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Gill Terrence, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Gill Terrence, Alden, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Opinion
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with lewd conduct after he watched a correction officer from the shower, stepped out of the shower and exposed himself, then returned to the shower leaving the curtain open and began masturbating. Petitioner was found guilty following a tier III disciplinary hearing. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, the misbehavior report and testimony from the correction officer who observed petitioner's behavior provide substantial evidence to support the determination of guilt (see Matter of Fero v. Prack, 110 A.D.3d 1128, 1128, 972 N.Y.S.2d 115 2013; Matter of Collins v. Fischer, 109 A.D.3d 1040, 1040, 971 N.Y.S.2d 370 2013, lv. dismissed 23 N.Y.3d 954, 988 N.Y.S.2d 123, 11 N.E.3d 197 2014 ). To the extent that petitioner claims that the charge was fabricated, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 2011 ). Petitioner's procedural challenges, including his claim that the Hearing Officer was biased, have been reviewed and found to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, EGAN JR. and CLARK, JJ., concur.