Lamountain v. Fischer

• Decision Date: 25 September 2014
• Citation: 2014 N.Y. Slip Op. 06344,992 N.Y.S.2d 456,120 A.D.3d 1508
• Parties: In the Matter of Ronnie LaMOUNTAIN, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1508
992 N.Y.S.2d 456
2014 N.Y. Slip Op. 06344

In the Matter of Ronnie LaMOUNTAIN, Petitioner,
v.
Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

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

Sept. 25, 2014.

Ronnie LaMountain, Woodbourne, petitioner pro se.

[992 N.Y.S.2d 457]

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in misbehavior report with committing an unhygienic act, providing a false statement and violating urinalysis testing procedures after a correction officer observed him urinating into a plastic bottle and then stated, upon the officer's inquiry, that the bottle contained water. Following a tier III disciplinary hearing, he was found guilty of committing an unhygienic act and providing a false statement, and that determination was affirmed administratively. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, along with the testimony of the correction officer who authored the report and the photograph of the bottle, provide substantial evidence to support the determination ( see Matter of Byrd v. Fischer, 117 A.D.3d 1263, 1263, 984 N.Y.S.2d 896 [2014]; Matter of Kalonji v. Fischer, 102 A.D.3d 1041, 1042, 957 N.Y.S.2d 920 [2013] ). The alleged inconsistencies in the misbehavior report and the contrary testimony of petitioner's witnesses raised credibility issues to be resolved by the Hearing Officer ( see Matter of Howard v. Fischer, 117 A.D.3d 1253, 1254, 984 N.Y.S.2d 892 [2014], lv. denied ––– N.Y.3d ––––, 2014 WL 4548481 [Sept. 16, 2014]; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ).

Turning to petitioner's procedural contentions, the detailed misbehavior report was sufficient to put him on notice of the charges and enable him to prepare a defense ( see Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 [2014]; Matter of Quezada v. Fischer, 113 A.D.3d 1004, 1004, 979 N.Y.S.2d 426 [2014] ). Further, the record demonstrates that any alleged defects in his prehearing assistance was remedied by the Hearing Officer ( see Matter of Scott v. Prack, 117...