Matter of Thorpe v Fischer

Matter of Thorpe v Fischer 2009 NY Slip Op 07907 [67 AD3d 1101] 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 Omar Thorpe, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Omar Thorpe, Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.

Correction officers observed a number of inmates engaged in a violent physical altercation in the recreation yard. When the inmates ignored directives to stop, chemical agents were used to restore order. Petitioner was identified as one of the inmates involved in the incident and, as a result, was charged in a misbehavior report with fighting, engaging in violent conduct, disturbing the order of the facility and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Initially, to the extent that petitioner asserts that the testimony relied upon by the Hearing Officer was contradictory and inconsistent, he raises an issue of substantial evidence. Upon reviewing the record, we find that the misbehavior report, related documentary evidence and the testimony of the correction personnel involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]; Matter of Wilson v Dubray, 54 AD3d 1089, 1090 [2008]). The testimony of petitioner and his inmate witnesses that petitioner did not participate in the melee presented a credibility issue for the Hearing Officer to resolve (see Matter of Peana v Fischer, 54 AD3d at 1127; Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]). Moreover, we find no error in [*2]the Hearing Officer's denial of certain inmates, as well as a nurse, as witnesses inasmuch as their testimony would have been cumulative and redundant under the circumstances presented (see Matter of Brown v Taylor, 62 AD3d 1230, 1231 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

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