Tarbell v. Lamora

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Superintendent of Franklin Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules. Petitioner, a prison inmate, was charged in a misbehavior report with failing to comply with a direct order, tampering with an electric device, possession of an altered item and a safety hazard after a sergeant discovered a fan that was without its front plate in petitioner’s cell one day after she directed the entire housing unit to properly dispose of such items immediately. Following a tier II prison disciplinary hearing, petitioner was found guilty of all the charges except tampering with an electric device. The determination was administratively affirmed and this CPLR article 78 proceeding ensued. We find that the misbehavior report and the hearing testimony of the sergeant who authored it provide substantial evidence to support the determination (see Matter of Vigliotti v Bell, 52 AD3d 1064, 1064 [2008]; Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]). To the extent that petitioner and his inmate witness provided testimony that contradicted that of the sergeant and supported petitioner’s theory of retaliation, such testimony presented credibility issues to be resolved by the Hearing Officer (see Matter of Barnes v Prack, 101 AD3d 1277, 1278 [2012]; Matter of Vigliotti v Bell, 52 AD3d at 1064; Matter of Pulliam v Whitmore, 24 AD3d at 922). We have reviewed petitioner’s remaining contentions, including his claims that he was improperly denied documentary evidence and the testimony of a requested witness related to his claim of retaliation, and find them to be unavailing (see Matter of Barnes v Prack, 101 AD3d at 1278; Matter of Gonzalez v Venettozzi, 94 AD3d 1313, 1314 [2012], lv denied 19 NY3d 812 [2012]; Matter of Williams v Fischer, 69 AD3d 1278, 1278-1279 [2010]). Peters, P.J., Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.