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Allen v. Fischer

107 A.D.3d 1248 Court N.Y. App. Div. Decision date 2013-06-20 English

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p. 1248
In the Matter of Norman Allen, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
[966 NYS2d 921]

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 Superintendent of Wende Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

p. 1249
While a group of inmates were returning from the recreation yard to their cells, a correction officer observed petitioner engaged in a physical altercation with another inmate. The officer gave them several direct orders to stop fighting, which were ignored. Eventually, however, they stopped. Thereafter, petitioner was charged in a misbehavior report with fighting, refusing a direct order, creating a disturbance and engaging in violent conduct. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the determination of guilt with respect to that charge (see Matter of Toste v Fischer, 95 AD3d 1511 , 1512 [2012]; Matter of Nunez v Unger, 93 AD3d 986 , 986 [2012]). As for the remaining charges, the detailed misbehavior report provides substantial evidence of petitioner’s guilt (see Matter of Walker v Bezio, 96 AD3d 1268 [2012]; Matter of Encarnacion v Bellnier, 89 AD3d 1301 , 1302 [2011]). Although petitioner maintained that he was the victim of the assault and that the report was false, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamage v Fischer, 100 AD3d 1176 , 1176 [2012]; Matter of Roussopoulas v Cunningham, 76 AD3d 730 , 731 [2010]). Accordingly, we find no reason to disturb the determination of guilt.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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