Matter of Roussopoulas v Cunningham

Matter of Roussopoulas v Cunningham 2010 NY Slip Op 06332 [76 AD3d 730] August 5, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

In the Matter of Nicholas Roussopoulas, Petitioner, v Raymond Cunningham, as Superintendent of Woodbourne Correctional Facility, Respondent.

—[*1] Nicholas Roussopoulas, Gowanda, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus Mastracco 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following an investigation, a correction officer determined that petitioner had been involved in a physical altercation with another inmate. As a result, he was charged in a misbehavior report with fighting. He was found guilty of this charge at the conclusion of a tier III disciplinary hearing and the penalty of 75 days of confinement in the special housing unit and loss of various privileges was imposed. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report, testimony adduced at the hearing and documentary evidence, supports the determination of guilt (see Matter of Partee v Bezio, 67 AD3d 1224, 1224 [2009], lv denied 14 NY3d 702 [2010]; Matter of Wilson v Dubray, 54 AD3d 1089, 1090 [2008]). There is no merit to petitioner's assertion that the Hearing Officer did not properly ascertain the reliability of certain confidential information inasmuch as the determination was not based upon such information. Although petitioner denied fighting with the other inmate and claimed that he acted in self-defense, this presented a [*2]credibility issue for the Hearing Officer to resolve (see Matter of Nina v Selsky, 35 AD3d 1049, 1050 [2006]; Matter of Carter v Goord, 8 AD3d 771, 772 [2004]). Moreover, petitioner's claim that he was improperly denied a witness has not been preserved for our review due to his failure to object at the hearing (see Matter of Polite v Goord, 49 AD3d 944 [2008]). Lastly, we find petitioner's challenge to the severity of the disciplinary penalty to be unavailing insofar as the penalty is not so shocking to one's sense of fairness as to be excessive (see Matter of Wilson v Artus, 71 AD3d 1294 [2010]; Matter of Martinez v Goord, 48 AD3d 851 [2008]).

Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.