Matter of McPherson v Lee

Matter of McPherson v Lee 2012 NY Slip Op 08615 Decided on December 13, 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: December 13, 2012
514649

[*1]In the Matter of BRAD McPHERSON, Petitioner,

v

WILLIAM LEE, as Superintendent of Green Haven Correctional Facility, et al., Respondents.

Calendar Date: October 29, 2012
Before: Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.


Brad McPherson, Attica, 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.

During an escort, a correction officer ordered petitioner to zip up his jacket. Petitioner became difficult and argued with the officer about it, but he eventually complied. He then removed his hands from his pockets and, when the officer instructed him to return them, petitioner again became argumentative and this time struck the officer in the mouth. The officer responded by striking petitioner and a physical altercation ensued at which point another officer intervened to help restrain petitioner. He was eventually placed in mechanical restraints. As a result, petitioner was charged in a misbehavior report with assaulting staff, refusing a direct order, interfering with an employee and engaging in violent conduct. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and a penalty of 12 months in the special housing unit was imposed, among other things. On administrative appeal, the charge of interfering with an employee was dismissed, but the remainder of the determination was upheld, with no change in penalty. Petitioner then commenced this CPLR article 78 proceeding. [*2]

Contrary to petitioner's claim, the matter was properly transferred to this Court, as the petition raises a question of substantial evidence (see CPLR 7804 [g]). Moreover, the detailed misbehavior report and related documentation, together with the testimony of the correction officers involved in the incident, provide substantial evidence supporting the determination (see Matter of Hemphill v Fischer, 94 AD3d 1309, 1309 [2012]; Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]). Petitioner's claim of retaliation presented a credibility issue for the Hearing Officer to resolve (see Matter of Martin v Fischer, 98 AD3d 774, 774 [2012]; Matter of Wright v Fischer, 98 AD3d 759, 759 [2012]). Therefore, we find no reason to disturb the determination of guilt.

Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ., concur.

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