In the Matter of Joseph Mcgowan v. Fischer

• Decision Date: 06 October 2011
• Citation: 2011 N.Y. Slip Op. 06961,930 N.Y.S.2d 313,88 A.D.3d 1038
• Parties: In the Matter of Joseph McGOWAN, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1038
930 N.Y.S.2d 313
2011 N.Y. Slip Op. 06961

In the Matter of Joseph McGOWAN, Petitioner,
v.
Brian FISCHER, as Commissioner of Correctional Services, Respondent.

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

Oct. 6, 2011.

[930 N.Y.S.2d 313]

Joseph McGowan, Attica, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.EGAN JR., J.

[88 A.D.3d 1038] 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.

A correction officer noticed that petitioner was acting in a suspicious manner and directed him to come to the front of the company. Petitioner refused and ran back to his cell followed by two correction officers. When the officers reached petitioner's cell, one of them noticed that the toilet had just been flushed, and he ordered petitioner out of the cell. After petitioner exited the cell, the officer found a plexiglass weapon on petitioner's bed and bottles of homemade alcohol on a ledge above the cell door. As a result, petitioner was charged in a misbehavior report with refusing a direct order, possessing a weapon and possessing alcohol. Following a tier III disciplinary hearing, he was found guilty of the charges. Petitioner's subsequent

[930 N.Y.S.2d 314]

administrative appeal proved unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge respondent's determination.

We confirm. Substantial evidence, consisting of the misbehavior report, documentary evidence and extensive testimony adduced at the hearing, supports the determination of guilt ( see Matter of Sorrentino v. Fischer, 78 A.D.3d 1354, 1355, 909 N.Y.S.2d 925 [2010]; [88 A.D.3d 1039] Matter of Terrence v. Fischer, 64 A.D.3d 1110, 1111, 884 N.Y.S.2d 277 [2009] ). Any discrepancies in the time of the incident noted in the log book and the other documents were adequately explained by the keeper of the log book, who stated that he inadvertently wrote down the wrong time due to the fact that the battery in the clock he relied upon was dead ( see Matter of Smith v. Fischer, 54 A.D.3d 1083, 1084, 863 N.Y.S.2d 834 [2008]; Matter of Muniz v. Selsky, 301 A.D.2d 769, 770, 753 N.Y.S.2d 575 [2003], lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790...