Matter of James v New York State Dept. of Corrections & Community Supervision

Matter of James v New York State Dept. of Corrections & Community Supervision 2015 NY Slip Op 03600 Decided on April 30, 2015 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: April 30, 2015
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[*1]In the Matter of BRIAN JAMES, Petitioner,

v

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

Calendar Date: February 24, 2015
Before: Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ.

Brian James, Cape Vincent, petitioner pro se.

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

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with fighting, violent conduct and creating a disturbance as a result of an altercation with another inmate. Following a tier III disciplinary hearing, petitioner was found guilty as charged and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

While a review of the hearing transcript demonstrates that the Hearing Officer was often ill-mannered and lacking in

professional decorum, we nonetheless confirm. The misbehavior report, related documentation and testimony from the correction officer who investigated the incident provide substantial evidence to support the determination of guilt (see Matter of Fernandez v Fischer, 110 AD3d 1422, 1422 [2013]; Matter of Leslie v Fischer, 107 AD3d 1264, 1265 [2013]). Testimony from petitioner and other inmate witnesses that petitioner was not involved in the incident created a credibility issue for the Hearing Officer to resolve (see Matter of Fernandez v Fischer, 110 AD3d at 1423; Matter of Mitchell v Bezio, 69 AD3d 1281, 1281-1282 [2010]). Petitioner's remaining contentions have been reviewed and found to be without merit.

Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur.

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