Perez v. Dubray

55 A.D.3d 1119, 865 N.Y.S.2d 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 2008
• Status: Published

Opinion

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 a prison disciplinary rule.

As the result of an incident in which a correction officer observed petitioner throw punches at another inmate, petitioner was charged in a misbehavior report with assault. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Initially, we note that the matter was properly transferred to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Young v Selsky, 32 AD3d 598 [2006]). Turning to the merits, the misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Peoples v Selsky, 33 AD3d 1179, 1180 [2006]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Ramos v Selsky, 48 AD3d 863, 864 [2008]). In view of the foregoing, we find no reason to disturb the determination of guilt.

Spain, J.P, Carpinello, Rose, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.