Howard v. Fischer — 117 A.D.3d 1253

Majority

p. 1253

In the Matter of Vincent Howard, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.

[984 NYS2d 892]

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 a prison disciplinary rule.

During a religious event attended by a number of inmates and their families at the correctional facility where petitioner was incarcerated, petitioner gave a speech in which he made statements about the facility staff and the alleged discriminatory manner in which the staff treated certain inmates. As a result, petitioner was charged in a misbehavior report with engaging in action detrimental to the order of the facility. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and the testimony of the correction sergeant who prepared it provide substantial evidence supporting the determination of guilt (see Matter of Perea v Fischer, 107 AD3d 1253 , 1253 [2013]; Matter

p. 1254

of Harvey v Woods, 53 AD3d 988 , 988 [2008]). The contrary testimony of petitioner and the witnesses who testified on his behalf presented a credibility issue for the Hearing Officer to resolve (see Matter of Rosa v Fischer, 112 AD3d 1009 , 1010 [2013], lv denied 22 NY3d 864 [2014]; Matter of Brooks v Fischer, 92 AD3d 987 , 988 [2012]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

Peters, PJ., Stein, Garry and Egan Jr., JJ., concur.

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

Cases cited

Perea v. Fischer 107 AD3d 1253 N.Y. App. Div. 2013-06-20 at 1253 p. 1253
Harvey v. Woods 53 AD3d 988 N.Y. App. Div. 2008-07-31 at 988 p. 1254
Rosa v. Fischer 112 AD3d 1009 N.Y. App. Div. 2013-12-05 at 1010 p. 1254
Brooks v. Fischer 92 AD3d 987 N.Y. App. Div. 2012-02-02 at 988 p. 1254