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Modlenaar v. Goord

21 A.D.3d 1190 Court N.Y. App. Div. Decision date 2005-09-22 English

Delivered by Mercure, J.

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p. 1190
In the Matter of Michael Modlenaar, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
[800 NYS2d 859]

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, an inmate at Clinton Correctional Facility in Clinton County, received two misbehavior reports, both dated November 25, 2003, charging him with violating a direct order, causing a disturbance and assault. Following a tier III hearing, petitioner was found guilty of all charges and given 24 months in the special housing unit. Upon administrative review, the determination was modified to 12 months. Petitioner initiated this CPLR article 78 proceeding to challenge the determination and we now confirm.

Our review of the record discloses substantial evidence supporting all of the determinations of guilt in the form of detailed misbehavior reports prepared by two correction officers who had witnessed the incidents (see Matter of Foster v Coughlin, 76

p. 1191
NY2d 964 , 966 [1990]; Matter of Salaam v Goord, 8 AD3d 776 , 777 [2004]; Matter of Marcial v Goord, 2 AD3d 1243 , 1244 [2003]; Matter of McCants v Murphy, 301 AD2d 713 , 714 [2003]). Petitioner’s contention that he was innocent of the charges presented an issue of credibility for resolution by the Hearing Officer (see Matter of Williams v Goord, 308 AD2d 614 , 615 [2003]). His complaint that the first report did not adequately describe the disturbance charge is without merit inasmuch as the misbehavior report provided petitioner with sufficient detail, including the date, time, location and a thorough description of the incident, to afford him an opportunity to prepare a defense (see Matter of Smith v Portuondo, 309 AD2d 1028 , 1028 [2003]). Moreover, petitioner’s assertion of hearing officer bias is not supported by the record, which discloses that the hearing was conducted in a fair and impartial manner (see Matter of Marcial v Goord, supra at 1244). Lastly, we find no error in the Hearing Officer’s denial of petitioner’s request to call certain witnesses inasmuch as the witnesses had no first-hand knowledge of the events in dispute (see Matter of Johnson v Goord, 297 AD2d 881 , 882 [2002]). Petitioner’s remaining claims, to the extent that they are properly before us, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Carpinello and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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