IN RE: Michel TOLIVER

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IN RE: Michel TOLIVER, Petitioner, v. COMMISSIONER OF NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

Decided: June 20, 2013

Before: STEIN, J.P., McCARTHY, GARRY and EGAN JR., JJ. Michel Toliver, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination rendered upon two misbehavior reports. The first report alleged that petitioner had refused a direct order to end his shower; the second report stemmed from his continued uncooperative behavior upon returning to his cell and charged him with refusing a direct order, creating a disturbance, interfering with an employee and committing a movement regulation violation. Following a tier II disciplinary hearing, petitioner was found guilty of all charges and the determination was affirmed upon administrative appeal.

We confirm. The misbehavior reports, hearing testimony and video of the incidents provide substantial evidence to support the determination (see Matter of Amaker v. Bezio, 98 AD3d 1146, 1146 [2012]; Matter of Brown v. Goord, 17 AD3d 952, 952 [2005] ), and petitioner's retaliation defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Brown v. Goord, 17 AD3d at 952). The Hearing Officer imposed a permissible penalty and, contrary to petitioner's assertion, he was not entitled to credit toward his administrative penalty for the period of time that he was confined prior to the hearing (see Matter of Mastropietro v. New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d 711 [2008] ). Petitioner's remaining contentions have been examined and found to lack merit.

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

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