McCain v. Fischer

• Decision Date: 14 March 2013
• Citation: 104 A.D.3d 1009,960 N.Y.S.2d 563,2013 N.Y. Slip Op. 01591
• Parties: In the Matter of Adrian McCAIN, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1009

960 N.Y.S.2d 563

2013 N.Y. Slip Op. 01591

In the Matter of Adrian McCAIN, Petitioner,

v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

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

March 14, 2013.

Adrian McCain, Pine City, petitioner pro se.

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

Before: PETERS, P.J., MERCURE, STEIN and McCARTHY, 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with assault and engaging in violent conduct after confidential information indicated that he attacked another inmate from behind with a cutting-type weapon, causing a three-inch laceration to his throat. In a second misbehavior report, petitioner was charged with being out of place and refusing a direct order for his actions shortly after the attack. At a tier III disciplinary hearing to address all charges, petitioner pleaded guilty to being out of place and refusing a direct order, and he was found guilty of the remaining charges. The determination was administratively affirmed, and petitioner commenced this CPLR article 78 proceeding.

We confirm. Initially, petitioner is precluded from challenging the finding of guilt with regard to the charges of being out of place and refusing a direct order by virtue of his plea of guilt to those charges ( see Matter of Montilla v. Prack, 95 A.D.3d 1580, 1581, 943 N.Y.S.2d 922 [2012];Matter of Sullivan v. Fischer, 95 A.D.3d 1514, 1515, 944 N.Y.S.2d 677 [2012] ). With regard to the assault and violent conduct charges, the finding of guilt was supported by substantial evidence in the form of the misbehavior report, hearing testimony, and the confidential testimony and documentation ( see Matter of Brown v. Fischer, 98 A.D.3d 775, 775–776, 948 N.Y.S.2d 924 [2012];Matter of White v. Prack, 94 A.D.3d 1299, 1299, 942 N.Y.S.2d 383 [2012] ). Petitioner's claim that he was identified by the informants as retaliation raised a credibility question to be resolved by the Hearing Officer ( see Matter of Wright v. Fischer, 98 A.D.3d 759, 759, 949 N.Y.S.2d 819 [2012];Matter of Martin v. Fischer, 98 A.D.3d 774, 774, 949 N.Y.S.2d 798 [2012] ).

The Hearing Officer's questioning of the correction officer who interviewed the informants and his review of the confidential documents...