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Hyatt v. Fischer

118 A.D.3d 1192 Court N.Y. App. Div. Decision date 2014-06-19 English

Judges Lahtinen, J.P, Stein, McCarthy, Rose and Egan Jr., JJ., concur.

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p. 1192
In the Matter of Shane Hyatt, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
[987 NYS2d 267]

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 commenced this proceeding challenging a tier III disciplinary determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, assault on staff and interference with an employee resulting from petitioner kicking a correction officer in the knee. Contrary to petitioner’s contention, substantial evidence in the form of the misbehavior report, related documentary evidence and videotape support the determination finding petitioner guilty of the charges (see Matter of Lopez v Fischer, 115 AD3d 1098 , 1098 [2014]; Matter of Barnes v Prack, 87 AD3d 1251 , 1252 [2011]). Any alleged inconsistencies in the evidence presented created a credibility issue for the Hearing Officer to resolve (see Matter of Jones v Goord, 50 AD3d 1427 , 1427 [2008]). To the extent that

p. 1193
petitioner asserts that the author of the misbehavior report should have been called to testify at the hearing, he raises this issue for the first time on appeal and it is, therefore, not preserved for our review (see Matter of Davis v Bezio, 74 AD3d 1615 , 1615 [2010]; Matter of Woods v Leclaire, 50 AD3d 1286 , 1287 [2008]). Petitioner’s remaining contentions are unpersuasive.

Lahtinen, J.P, Stein, McCarthy, Rose and Egan Jr., JJ., concur.

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

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