Opinion
2012-09-20
In the Matter of Cristian COLON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Cristian Colon, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Cristian Colon, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: PETERS, P.J., MERCURE, SPAIN, 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 which found petitioner guilty of violating certain prison disciplinary rules.
After confidential information was received by a correction officer indicating that petitioner was a participant in a brutal assault upon another inmate, petitioner was charged in a misbehavior report with assault, possessing a weapon and violent conduct. Following a tier III disciplinary hearing, he was found guilty of all charges. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who prepared it and the confidential testimony and documents found credible by the Hearing Officer provide substantial evidence supporting the determination of guilt ( see Matter of Matthews v. Fischer, 95 A.D.3d 1529, 944 N.Y.S.2d 681 [2012];Matter of Sullivan v. Fischer, 95 A.D.3d 1514, 944 N.Y.S.2d 677 [2012] ). Although petitioner and his inmate witness denied that petitioner participated in the assault, this created a credibility issue for the Hearing Officer to resolve ( see Matter of Cruz v. Fischer, 94 A.D.3d 1296, 1297, 942 N.Y.S.2d 673 [2012] ).
Moreover, we are unpersuaded by petitioner's procedural claims. The fact that the unusual incident report requested by petitioner was not completed until after his hearing began cannot be attributed to inadequate employee assistance ( see Matter of Maya v. Goord, 272 A.D.2d 724, 725, 707 N.Y.S.2d 551 [2000],lv. denied96 N.Y.2d 704, 723 N.Y.S.2d 131, 746 N.E.2d 186 [2001] ). In any event, inasmuch as the Hearing Officer read the relevant portions to petitioner at the hearing, no prejudice has been shown ( see Matter of Ortiz v. Fischer, 91 A.D.3d 1006, 935 N.Y.S.2d 914 [2012] ). Nor do we find that the Hearing Officer erred in denying witnesses who could not provide relevant or material proof ( see Matter of Burr v. Fischer, 95 A.D.3d 1538, 943 N.Y.S.2d 920 [2012],lv. denied19 N.Y.3d 811, 2012 WL 3930658 [Sept. 11, 2012] ). Lastly, our review of the record demonstrates that petitioner's guilt was premised upon the evidence presented at the hearing, rather than any alleged hearing officer bias ( see Matter of White v. Fischer, 95 A.D.3d 1582, 943 N.Y.S.2d 924 [2012];Matter of Matthews v. Fischer, 95 A.D.3d at 1529, 944 N.Y.S.2d 681).
We have examined petitioner's remaining claims, including his challenge to the denial of his request for the confidential informant's testimony, and find them to be unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.