Opinion
No. 501455.
November 21, 2007.
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.
Brunce Smith, Malone, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ.
During an incident in which petitioner jumped on the back of a correction sergeant and attempted to take his baton, a violent struggle occurred which eventually resulted in petitioner being placed in handcuffs. He was thereafter charged in a misbehavior report with assaulting staff and engaging in violent conduct. Following a tier III disciplinary hearing, he was found guilty of both charges. The determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt ( see Matter of Roye v Goord, 34 AD3d 1134, 1134; Matter of Pulliam v Whitmore, 24 AD3d 921, 922). Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Lamage v Goord, 285 AD2d 724, 724, appeal dismissed 97 NY2d 639; Matter of Grant v Selsky, 281 AD2d 676, 677). Moreover, the record discloses that all of the reports that existed, which were prepared by officers who responded to the incident, were provided to petitioner. Consequently, there is no merit to his claim that he was improperly denied documents ( see Matter of Tafari v Selsky, 34 AD3d 943, 944, lv denied 8 NY3d 809; Matter of Mullen v Superintendent of Southport Correctional Facility, 29 AD3d 1244, 1244). His remaining contentions have either not been preserved for our review or are lacking in merit.
Adjudged that the determination is confirmed, without costs, and petition dismissed.