Opinion
September 14, 2000.
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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Luis Mena, Malone, petitioner in person.
Eliot Spitzer, Attorney-General (Julie M. Sheridan of counsel), Albany, for respondents.
Before: Crew III, J.P., Carpinello, Graffeo and Mugglin, JJ.
MEMORANDUM AND JUDGMENT
Following a tier III hearing, petitioner was found guilty of violating prison disciplinary rules prohibiting assault on an inmate, violent conduct, creating a disturbance and failure to obey an order. Contrary to petitioner's contention, we find that the detailed misbehavior report, combined with the reporting officer's testimony based upon his eyewitness observations and the testimony of another correction officer who endorsed the report, provide substantial evidence of petitioner's guilt (see, Matter of Harris v. Corcoran, 261 A.D.2d 740). Petitioner's conflicting version of the incident raised a credibility issue for the Hearing Officer to resolve (see, Matter of Arias v. Goord, 274 A.D.2d 807, 710 N.Y.S.2d 201). Petitioner's claim that he was denied documentary evidence, i.e., a videotape of the incident, is without merit. The record reveals that the videotape petitioner requested does not exist (see, Matter of Burse v. Goord, 274 A.D.2d 678, 710 N.Y.S.2d 201). Petitioner's remaining contentions have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.