IN RE: Osmond K. BROWN

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

IN RE: Osmond K. BROWN, Petitioner, v. Justin TAYLOR, as Superintendent of Governeur Correctional Facility, Respondent.

Decided: May 28, 2009

Before:  MERCURE, J.P., SPAIN, LAHTINEN, KAVANAGH and McCARTHY, JJ. Osmond K. Brown, Marcy, petitioner pro se. Andrew M. Cuomo, 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 St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violent conduct, creating a disturbance, interference with an employee, refusing a direct order and making threats.   Following a tier II disciplinary hearing, petitioner was found guilty of creating a disturbance and refusing a direct order.1  After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

 We confirm.   Initially, we find that the written misbehavior report, containing a specific account and authored by the correction officer involved in the incident, who corroborated the report through her testimony, provides substantial evidence to support the determination (see Matter of Saunders v. Goord, 49 A.D.3d 1000, 1000, 853 N.Y.S.2d 418 [2008];  Matter of Dolan v. Goord, 41 A.D.3d 1119, 1119, 840 N.Y.S.2d 169 [2007] ).   To the extent that there was some testimony that tended to refute the correction officer's version of events, that raised an issue of credibility for the Hearing Officer to resolve (see Matter of Igartua v. Rivera, 58 A.D.3d 1046, 1046, 870 N.Y.S.2d 810 [2009];  Matter of Hale v. Selsky, 57 A.D.3d 1136, 1137, 871 N.Y.S.2d 426 [2008] ).   Likewise, we find no merit to petitioner's claim that he was improperly denied the right to call several civilian witnesses, inasmuch as they were not present during the incident and, in any case, their testimony would have been cumulative and redundant to evidence already produced at the hearing (see Matter of Scott v. Fischer, 57 A.D.3d 1035, 1036, 868 N.Y.S.2d 816 [2008];  Matter of Tafari v. Selsky, 33 A.D.3d 1029, 1030, 821 N.Y.S.2d 679 [2006], lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 687, 860 N.E.2d 989 [2006] ).

We have examined petitioner's remaining contentions, including that the Hearing Officer was not fair and impartial, and find them to be either unpreserved or unsupported by the record.

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


1.   There is a discrepancy within the written hearing disposition as to whether petitioner was found guilty of making threats.   However, in this proceeding respondent indicates that petitioner was not found guilty of making threats.

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