Matter of Spikes v Fischer

Matter of Matter of Spikes v Fischer 2012 NY Slip Op 07929 Decided on November 21, 2012 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: November 21, 2012
514279

[*1]In the Matter of HOWARD SPIKES, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 26, 2012
Before: Lahtinen, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ.


Howard Spikes, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting violent conduct, harassment, creating a disturbance and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges and that determination was upheld upon his administrative appeal. This CPLR article 78 proceeding ensued.

Initially, the Attorney General concedes, and we agree, that the part of the determination finding petitioner guilty of creating a disturbance should be annulled and all references thereto expunged from petitioner's institutional record (see Matter of Bilal v Fischer, 92 AD3d 1046, [*2]1046-1047 [2012])[FN1]. Turning to the remaining charges, our review confirms that the detailed misbehavior report, combined with the hearing testimony, provide substantial evidence supporting the determination finding petitioner guilty of violent conduct, harassment and disobeying a direct order (see Matter of Harrison v Prack, 87 AD3d 1221 [2011]; Matter of Crenshaw v Fischer, 87 AD3d 1189, 1190 [2011]). Although petitioner denied the allegations in the report, this created a credibility issue for the Hearing Officer to resolve (see Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]).

Petitioner's various procedural arguments, including his claim that annulment is warranted because the misbehavior report was allegedly not authored in a timely fashion, have been examined and found to be without merit. Petitioner's challenge to the Hearing Officer's denial of a witness he claims would have aided his defense to the charge of creating a disturbance has been rendered academic due to the dismissal and expungement of that charge herein. Moreover, contrary to petitioner's assertion, the hearing transcript is sufficient to afford meaningful appellate review (see Matter of Anthony v Fischer, 81 AD3d 1027, 1028 [2011]).

Lahtinen, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed. Footnotes

Footnote 1: Inasmuch as petitioner has served his administrative penalty and there was no recommended loss of good time, there is no need to remit this matter for a redetermination of the penalty imposed (see Matter of Rodriguez v Selsky, 50 AD3d 1337, 1337 n [2008]).