Lunney v. Selsky

275 A.D.2d 820, 713 N.Y.S.2d 300, 2000 N.Y. App. Div. LEXIS 9190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 2000
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from possessing a weapon, fighting, assault and refusing a direct order. This determination was affirmed upon petitioner’s administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding and we confirm.

Contrary to petitioner’s contention, we find that the misbehavior report, combined with the hearing testimony, including the reporting officer’s testimony as to her eyewitness observations, provide substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner claimed that he was not the initial aggressor in the fight and denied possessing the weapon and refusing a direct order, this raised a credibility "issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811).

Petitioner’s remaining arguments have been examined and found to be unpersuasive.

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