Lopez v. Goord

284 A.D.2d 757, 728 N.Y.S.2d 532, 2001 N.Y. App. Div. LEXIS 6609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2001
• Status: Published

Opinion

—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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

In January 2000, petitioner was found guilty of violating the prison disciplinary rules that prohibit assault and violent conduct. Evidence presented at the disciplinary hearing included the misbehavior report which related that petitioner and an unidentified inmate had approached a third inmate in a bathroom where petitioner attempted to slash the victim in the face with a homemade weapon. The victim raised his left arm in a defensive gesture and sustained a cut on his left hand. This version of events was consistent with the confidential testimony and the testimony of the correction officer who was on duty in the vicinity of the facility where the attack occurred. We conclude that the record contains substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). To the extent that petitioner’s testimony and that of his inmate witnesses conflicted with the evidence against him, this presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Perez v Wilmot, 67 NY2d 615, 617). We have examined petitioner’s remaining contentions, including his allegation of Hearing Officer bias, and find them to be either without merit or unpreserved for our review.

Cardona, P. J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.