Opinion
September 27, 1988
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment vacated on the law and determination unanimously confirmed and petition dismissed. Memorandum: Petitioner appeals from a judgment denying his CPLR article 78 petition to annul a determination made following a Tier II prison disciplinary hearing. It was determined that petitioner violated an inmate rule ( 7 NYCRR 270.1 [b] [2] [i]). Since the issue raised by the petition is whether the determination is supported by substantial evidence, Special Term should have transferred the case to this court rather than reaching the issue itself (CPLR 7804 [g]). The matter having reached this court, however, we may treat it as though it had been properly transferred and dispose of the issue de novo (see, Matter of Smith v Coughlin, 111 A.D.2d 503; Matter of Kincaide v Coughlin, 86 A.D.2d 893). The misbehavior report constitutes substantial evidence to support the Hearing Officer's determination (see, People ex rel. Vega v Smith, 66 N.Y.2d 130; Matter of Samuels v Kelly, 125 A.D.2d 1009). Issues of credibility are for the Hearing Officer to resolve (Matter of Perez v Wilmot, 67 N.Y.2d 615).