Matter of Jenkins v Fischer

Matter of Jenkins v Fischer 2010 NY Slip Op 08400 [78 AD3d 1385] November 18, 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 James Jenkins, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] James Jenkins, Malone, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in two misbehavior reports with a number of prison disciplinary rule violations after he refused a correction officer's directive to turn over a state-issued shirt that had been altered, attempted to strike that officer and, when he was escorted away from the area by another correction officer for a pat frisk, refused that officer's directives and became combative. A tier III disciplinary hearing was conducted on the charges contained in both reports. At the conclusion of the hearing, petitioner was found guilty of two charges of engaging in violent conduct, two charges of refusing a direct order, refusing a search or frisk and attempting to assault staff. The determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior reports, together with the testimony of the correction officers who authored them, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Bridgeforth v Fischer, 69 AD3d 1068, 1068-1069 [2010]). Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]; Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]). His remaining contentions are either unpreserved for our review or are lacking in merit. [*2]

Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.