Matter of McLeod v Fischer

Matter of McLeod v Fischer 2014 NY Slip Op 07716 Decided on November 13, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 13, 2014
518391

[*1]In the Matter of BURNELL A. McLEOD, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 16, 2014
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ.

Burnell A. McLeod, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 observed attempting to stab another inmate with a shank during a melee in the prison yard and, as a result, was charged in a misbehavior report with disobeying a direct order, fighting, creating a disturbance, possession of a weapon and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. However, on administrative appeal the charges of disobeying a direct order and fighting were dismissed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's contention, the misbehavior report, testimony at the hearing from correction officers who witnessed the event and documentary evidence submitted at the hearing provide substantial evidence to support the determination of guilt (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Williams v Goord, 23 AD3d 972, 973 [2005]). Any alleged inconsistencies in the testimony or evidence created a credibility issue for the Hearing Officer to resolve (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]).

We have reviewed petitioner's remaining contentions, including his claim of hearing [*2]officer bias, and find them to be without merit.

Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.