IN RE: Felton R. FORT

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

IN RE: Felton R. FORT, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: June 26, 2008

Before:  MERCURE, J.P., PETERS, ROSE, MALONE JR. and KAVANAGH, JJ. Felton R. Fort, Nananoch, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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.

Correction officers advised petitioner that he had to move to the top bunk of his prison cell.   Claiming that a medical condition prevented him from doing so, petitioner refused.   After it was determined that petitioner had no such medical condition that would preclude him from moving, he was charged in a misbehavior report with disobeying a direct order, lying and violating facility movement regulations.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of all three charges.   That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm.   The detailed misbehavior report, together with the hearing testimony from a prison doctor who indicated that there was no documented medical reason why petitioner could not have moved to the top bunk, comprise substantial evidence to support the determination of guilt (see Matter of Wilson v. Goord, 47 A.D.3d 1102, 1102-1103, 850 N.Y.S.2d 272 [2008] ).   Petitioner's contradictory testimony regarding his health presented a credibility issue for the Hearing Officer to resolve (see Matter of Rosa v. Brown, 47 A.D.3d 1142, 1143, 849 N.Y.S.2d 185 [2008] ).   Petitioner's remaining contentions have been examined and found to be unavailing.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

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