MatterofMcLeodvFischer

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: November 13, 2014 518391 ________________________________

In the Matter of BURNELL A. McLEOD, Petitioner, v MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent. ________________________________

Calendar Date: September 16, 2014 Before: Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ.

__________

Burnell A. McLeod, Comstock, petitioner pro se.

Eric T. Schneiderman, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was observed attempting to stab another inmate with a shank during a melee in the prison yard and, as a result, was charged in a misbehavior report with disobeying a direct order, fighting, creating a disturbance, possession of a weapon and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. However, on administrative appeal the charges of disobeying a direct order and fighting were dismissed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

-2- 518391

We confirm. Contrary to petitioner's contention, the misbehavior report, testimony at the hearing from correction officers who witnessed the event and documentary evidence submitted at the hearing provide substantial evidence to support the determination of guilt (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Williams v Goord, 23 AD3d 972, 973 [2005]). Any alleged inconsistencies in the testimony or evidence created a credibility issue for the Hearing Officer to resolve (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]).

We have reviewed petitioner's remaining contentions, including his claim of hearing officer bias, and find them to be without merit.

Lahtinen, J.P., McCarthy, Garry, Rose and Devine, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court