Matter of Jackson v Dubray

Matter of Jackson v Dubray 2008 NY Slip Op 08577 [56 AD3d 919] November 13, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Daryl Jackson, Petitioner, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

—[*1] Daryl Jackson, Malone, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

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, a prison inmate, was charged in two separate misbehavior reports with engaging in violent conduct, attempting to assault a staff member, refusing a direct order and committing an unhygienic act. Following a combined tier III disciplinary hearing, petitioner was found guilty of all charges. That determination was administratively affirmed and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The misbehavior reports, together with the related documentation, photographs and testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Boley v Selsky, 50 AD3d 1411, 1412 [2008]). To the extent that petitioner offered a retaliation defense, a credibility issue was created for resolution by the Hearing Officer (see Matter of Kearney v Fischer, 51 AD3d 1185, 1186 [2008]). Petitioner's assertion that he was deprived of adequate employee assistance is unsubstantiated by the record and, in any event, there is no indication that he suffered any prejudice as a result of the purported deficiencies (see Matter of Gonzalez v Fischer, 53 AD3d 945, 946 [2008]). Petitioner's [*2]remaining contentions, including his claims that he was denied the right to present witness testimony and that the Hearing Officer was biased, have been scrutinized and found to be without merit.

Peters, J.P., Spain, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.