Matter of Gaines v Fischer

Matter of Gaines v Fischer 2009 NY Slip Op 07895 [67 AD3d 1080] November 5, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Roger Gaines, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Roger Gaines, Elmira, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

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 a participant in a fight involving multiple inmates and he disregarded a correction officer's directive to cease such conduct. As a result, he was charged in a misbehavior report with fighting, refusing a direct order and creating a disturbance. Following a tier III disciplinary hearing, he was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Roye v Goord, 34 AD3d 1134 [2006]; Matter of Lamage v Goord, 285 AD2d 724, 724 [2001], appeal dismissed 97 NY2d 639 [2001]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Vassell v Fischer, 48 AD3d 876 [2008]; Matter of Griffin v Goord, 43 AD3d 591, 591 [2007]). Moreover, we find no merit to petitioner's assertion that he was improperly denied the misbehavior report of a fellow inmate who was also involved in the fight given that it was irrelevant to the charges against petitioner (see Matter of Jackson v Goord, 18 AD3d 973, 974 [2005], lv denied 5 NY3d 713 [2005]). Lastly, petitioner's challenge to the sufficiency of the misbehavior report is not preserved for our review given his failure to raise it at the hearing or in his administrative appeal (see Matter of Serrano v Goord, 266 AD2d 661, 662 [1999], lv denied 94 NY2d 762 [2000]).

Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.