Matter of France v Bezio

Matter of France v Bezio 2010 NY Slip Op 08040 [78 AD3d 1357] November 10, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Brian France, Petitioner, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Brian France, Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. 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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with making threats and engaging in gang-related activities. Specifically, the misbehavior report alleged that petitioner had approached another inmate on the courtyard walkway, brandished a razor-type weapon and made representations that he was involved with a gang called the Latin Kings. A tier III disciplinary hearing was held, and petitioner was found guilty of both charges. After the determination was affirmed administratively, petitioner commenced this CPLR article 78 proceeding.

We confirm. The content of the misbehavior report, as well as the testimony of the victim, provide substantial evidence supporting the determination of petitioner's guilt (see Matter of Green v Bezio, 76 AD3d 1135, 1135 [2010]; Matter of Moore v Fischer, 76 AD3d 737, 737 [2010]; Matter of Hines v Goord, 29 AD3d 1204, 1205 [2006]). In this regard, the victim identified petitioner at the hearing, as well as from photographs shown to him shortly after the incident, as the person who brandished the weapon. He also testified that he had been told by another inmate that petitioner was, in fact, a member of the Latin Kings. The victim further [*2]testified that petitioner would "hang out" in the yard known as "King Court" and told the victim that he was a "King."[FN*] While petitioner denied that he was a member of the Latin Kings or any other gang, or that he had threatened the victim with a weapon, and offered the testimony of other inmates in an attempt to discredit the victim, this evidence served to raise credibility issues for the Hearing Officer to resolve (see Matter of Moore v Fischer, 76 AD3d at 737; Matter of Parra v Fischer, 76 AD3d 724, 725 [2010]). Petitioner's remaining contentions have been reviewed and found to be without merit.

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

Footnote *: There was also testimony from the correction officer who authored the report that petitioner had been identified by a confidential informant as a member of the Latin Kings (see Matter of Sterling v Bezio, 76 AD3d 1165, 1165 [2010]).