## State of N ew York Su p reme Cou rt, A p p ellate Division Third J u dicial Dep artment Decided and Entered: September 17, 2015 519889

________________________________ In the Matter of JOHN RAMOS, Petitioner,
v MEMORANDUM AND JUDGMENT D. VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

________________________________ Calendar Date: August 10, 2015 Before: Peters, P.J., Garry, Devine and Clark, JJ.

__________ John Ramos, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

__________ 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules. A correction officer observed petitioner involved in a physical altercation with another inmate. Both petitioner and the other inmate disregarded the officer's directive to cease engaging in such conduct. As a result, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal with a modified-2- 519889

penalty and this CPLR article 78 proceeding followed. We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of James v New York State Dept. of Corr. & Community Supervision, 127 AD3d 1537, 1537 [2015]; Matter of Nelson v Fischer, 93 AD3d 1059 [2012]). Although petitioner maintained that he was not the aggressor and was only defending himself, and his inmate witnesses backed up his claims, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Smith v Rock, 108 AD3d 889, 889 [2013], lv denied 22 NY3d 854 [2013]). Moreover, we find no merit to petitioner's assertions that he was denied a fair and impartial hearing. Pursuant to 7 NYCRR 254.1, the Hearing Officer was authorized to conduct the hearing, and there is no indication that he was involved in the investigation of the incident or that his review of the final unusual incident report, in his capacity as a captain, required his disqualification (see Matter of Rogers v Prack, 118 AD3d 1223, 1224 [2014], lv granted 24 NY3d 916 [2015]; Matter of Sime v Goord, 30 AD3d 887, 888 [2006], lv denied 7 NY3d 717 [2006]). Furthermore, contrary to petitioner's claim, the penalty imposed, which was reduced on administrative appeal, is not so excessive as to be "'shocking to one's sense of fairness'" (Matter of Taylor v Fischer, 89 AD3d 1298, 1299 [2011], quoting Matter of Phipps v Fischer, 82 AD3d 1396, 1397 [2011]; see Matter of Berry v Fischer, 78 AD3d 1411, 1412 [2010]). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit. Peters, P.J., Garry, Devine and Clark, JJ., concur.-3- 519889

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

ENTER:

Robert D. Mayberger Clerk of the Court