In the Matter of Lawrence Bartley v. Fischer
| Decision Date | 20 May 2010 |
| Citation | 2010 N.Y. Slip Op. 04302,73 A.D.3d 1363,901 N.Y.S.2d 743 |
| Parties | In the Matter of Lawrence BARTLEY, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Lawrence Bartley, Ossining, petitioner pro se.Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.BEFORE: PETERS, J.P., SPAIN, MALONE JR., GARRY and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 () to review (1) a determination of respondent which found petitioner guilty of violating a prison disciplinary rule, and (2) a determination of respondent which directed that petitioner be placed in involuntary protective custody.
We confirm both determinations.1 First, with regard to the prison disciplinary proceeding, petitioner claims that his employee assistant was inadequate in failing to provide him with a copy of the use of force report, but any error was cured given that the Hearing Officer provided him with a copy ( see Matter of Davis v. Prack, 63 A.D.3d 1457, 1458, 884 N.Y.S.2d 269 [2009] ). Moreover, substantial evidence supports the determination of guilt in the form of the misbehavior report, testimony of its author and other documentary evidence ( see Matter of Bowers v. Venettozzi, 59 A.D.3d 793, 873 N.Y.S.2d 755 [2009]; Matter of Lamage v. Fischer, 58 A.D.3d 1045, 1045, 870 N.Y.S.2d 809 [2009] ). While the other inmate instigated the fight and petitioner claimed that he only acted in self-defense, the Hearing Officer was free to credit evidence that his participation exceeded that necessary to protect himself ( see Matter of Lamage v. Fischer, 58 A.D.3d at 1045–1046, 870 N.Y.S.2d 809).
Lastly, the inmate who attacked petitioner had a history of assaultive behavior, used a weapon in the attack, and failed to explain why the fight occurred or address concerns that petitioner was still in jeopardy. Substantial evidence accordingly supports the Hearing Officer's determination that petitioner “may be a potential victim,” rendering involuntary protective custody appropriate (7 NYCRR 330.2[b]; see Matter of Lane v. Kirkpatrick, 68 A.D.3d 1280, 1281, 890 N.Y.S.2d 682 [2009] ).
Petitioner's remaining arguments have been considered and found to be without merit.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.
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