Matter of Donah v Prack

Matter of Donah v Prack 2015 NY Slip Op 03601 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 JAMES DONAH, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

Calendar Date: February 24, 2015
Before: Peters, P.J., McCarthy, Garry and Clark, JJ.

James Donah, Marcy, 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.

A correction officer unlocked the door to petitioner's cell to allow him access to the shower. A second officer followed and, as that officer approached the cell, petitioner made direct eye contact with him and forcefully threw open the door. To avoid being struck in the head and face, the officer raised his arm to absorb the impact. As a result of this incident, petitioner was charged in a misbehavior report with assaulting staff and engaging in violent conduct. He was found guilty of

the charges following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and the related documentation, provide substantial evidence supporting the determination of guilt (see Matter of Payne v Corcimiglia, 98 AD3d 1175, 1175 [2012]; Matter of Cornelius v Fischer, 98 AD3d 779, 780 [2012]). Petitioner's claims that the report was written in retaliation for prior grievances that he had filed, and that he hit the officer with the door by accident, presented credibility issues for the Hearing Officer to resolve (see Matter of [*2]Guillory v Fischer, 111 AD3d 1005, 1005 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]). His remaining contentions have not been preserved for our review.

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

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