Howard v. Fischer

• Decision Date: 15 May 2014
• Citation: 2014 N.Y. Slip Op. 03564,984 N.Y.S.2d 892,117 A.D.3d 1253
• Parties: In the Matter of Vincent HOWARD, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1253

984 N.Y.S.2d 892

2014 N.Y. Slip Op. 03564

In the Matter of Vincent HOWARD, Petitioner,

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

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

May 15, 2014.

Vincent Howard, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

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 A.D.3d 1253, 1253, 967 N.Y.S.2d 511 [2013];Matter of Harvey v. Woods, 53 A.D.3d 988, 988, 862 N.Y.S.2d 630 [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 A.D.3d 1009, 1010, 976 N.Y.S.2d 314 [2013],lv. denied22 N.Y.3d 864, 2014 WL 1243632 [2014];Matter of Brooks v. Fischer, 92 A.D.3d 987, 988, 937 N.Y.S.2d 637 [2012] ). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

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

PETERS, P.J., STEIN, GARRY and EGAN JR., JJ., concur.