IN RE: Antonio BROWN

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

IN RE: Antonio BROWN, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: November 19, 2009

Before:  MERCURE, J.P., SPAIN, KANE, KAVANAGH and GARRY, JJ. Antonio Brown, Alden, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers 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, an inmate, was charged in a misbehavior report with violent conduct, assaulting staff and creating a disturbance following an incident during which he struck a correction officer during a pat frisk.   Following a tier III disciplinary hearing, petitioner was found guilty on all charges.   That determination was affirmed upon administrative review, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm.   The misbehavior report, along with the hearing testimony of the correction officers involved in the incident, provide substantial evidence of petitioner's guilt (see Matter of Gimenez v. Artus, 63 A.D.3d 1461, 1462, 881 N.Y.S.2d 551 [2009];  Matter of Jackson v. McGinnis, 47 A.D.3d 1100, 1100-1101, 848 N.Y.S.2d 903 [2008] ).   To the extent that petitioner claims that the misbehavior report was written in retaliation for past grievances that he filed against various correction officers, this raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Muller v. Fischer, 62 A.D.3d 1191, 1191, 881 N.Y.S.2d 188 [2009];  Matter of Washington v. Napoli, 61 A.D.3d 1243, 1243, 877 N.Y.S.2d 752 [2009], lv. denied 13 N.Y.3d 704, 886 N.Y.S.2d 366, 915 N.E.2d 291 [2009] ).   Finally, we are unpersuaded by petitioner's argument that he was improperly denied a photocopy of several log book entries, inasmuch as the Hearing Officer provided a transcription of the entries and petitioner has not demonstrated how he was prejudiced in the preparation of his defense (see Matter of Bunting v. Goord, 25 A.D.3d 845, 846, 809 N.Y.S.2d 588 [2006];  Matter of Reed v. Selsky, 9 A.D.3d 710, 711, 779 N.Y.S.2d 826 [2004], lv. denied 3 N.Y.3d 611, 787 N.Y.S.2d 714, 821 N.E.2d 140 [2004] ).

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

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