Bermudez v. Fischer

• Decision Date: 20 June 2013
• Citation: 107 A.D.3d 1269,2013 N.Y. Slip Op. 04661,967 N.Y.S.2d 249
• Parties: In the Matter of Jose BERMUDEZ, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1269

967 N.Y.S.2d 249

2013 N.Y. Slip Op. 04661

In the Matter of Jose BERMUDEZ, Petitioner,

v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

June 20, 2013.

Jose Bermudez, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: PETERS, P.J., SPAIN, GARRY and EGAN JR., JJ.

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 and a determination of the Superintendent of Upstate Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

When a nurse administered medication to petitioner through the hatch in his cell, petitioner switched the cup containing the medication with another medication cup that he had in his cell. The nurse asked him what happened to the medication that she had given him and he replied “you're crazy”. Consequently, he was charged in a misbehavior report with possessing unauthorized medication and interfering with an employee. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal.

Shortly thereafter, petitioner was observed using draglines during his exercise period. His cell was searched and correction officials recovered draglines made out of pieces of sheets and towels that had been ripped apart. As a result, petitioner was charged in a second misbehavior report with altering state bedding, destroying state property and refusing a direct order. Following a tier II disciplinary hearing, he was found guilty of the former two charges but not the latter. The determination was later affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging both disciplinary determinations.

Turning to the first determination, we find that the detailed misbehavior report provides substantial evidence supporting the determination of guilt ( see Matter of Walker v. Bezio, 96 A.D.3d 1268, 1268, 946 N.Y.S.2d 905 [2012];Matter of Povoski v. Fischer, 93 A.D.3d 963, 964, 939 N.Y.S.2d 724 [2012],appeal dismissed19 N.Y.3d 1020, 951 N.Y.S.2d 715, 976 N.E.2d 244 [2012] ). The contrary testimony of petitioner and his cellmate presented a credibility issue for the Hearing Officer to resolve ( see Matter of Williams v. Fischer, 102 A.D.3d 1044, 1044, 958 N.Y.S.2d 238 [2013];Matter of Williams v. Fischer, 92 A.D.3d 1053, 1054, 937 N.Y.S.2d 900 [2012] ). Moreover, as petitioner was confined on another disciplinary charge at the time the first misbehavior report was written, the hearing did not have to be commenced within seven days as provided in 7 NYCRR 251–5.1(a); therefore, it was not untimely ( see Matter of Applewhite v. Goord, 45 A.D.3d 1112, 1112, 846 N.Y.S.2d 457 [2007],lv. denied10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008];Matter of Serrano v. Goord, 28 A.D.3d 838, 838, 811 N.Y.S.2d 596 [2006];Matter of Moore v. Buzzetti, 249 A.D.2d 721, 722, 671 N.Y.S.2d 823 [1998] ). Further, we reject petitioner's claim that he was denied the right to be present at the hearing given that he attended part of it but refused to attend the final phase even though he was informed by a correction officer that it would be concluded in his absence ( see Matter of Haden v. Prack, 62 A.D.3d 1133, 1134, 877 N.Y.S.2d 923 [2009];Matter of Morris v. Goord, 50 A.D.3d 1327, 1327, 855 N.Y.S.2d 307 [2008] ).

As for the second determination, we find that it is supported by substantial evidence consisting of the misbehavior report and the testimony of the correction officer...