WALTON, SAMUEL v. COLVIN, JOHN ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 910 TP 16-00103 PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ. IN THE MATTER OF SAMUEL WALTON, PETITIONER, V MEMORANDUM AND ORDER JOHN COLVIN, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY AND ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS. SAMUEL WALTON, PETITIONER PRO SE. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS. Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Seneca County [Dennis F. Bender, A.J.], entered January 19, 2016) to review a determination finding after a tier II hearing that petitioner had violated two inmate rules. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated two inmate rules. We reject petitioner’s contention that the determination is not supported by substantial evidence. Specifically, the misbehavior report, together with the videotape of the incident and the hearing testimony of the correction officer who prepared the misbehavior report, “constitutes substantial evidence supporting the determination that petitioner violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648). Petitioner’s denials of the reported misbehavior presented only an issue of credibility for resolution by the Hearing Officer (see Matter of Foster v Coughlin, 76 NY2d 964, 966). Entered: November 10, 2016 Frances E. Cafarell Clerk of the Court