State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 13, 2014 518391
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In the Matter of BURNELL A.
McLEOD,
Petitioner,
v MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
of Corrections and Community
Supervision,
Respondent.
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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