Shakur v. Smith

34 A.D.3d 898, 822 N.Y.S.2d 741

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rule that prohibits fighting after petitioner and another inmate were observed on the medical transport bus yelling and pushing each other. Petitioner was found guilty of fighting following a tier II disciplinary hearing. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

Contrary to petitioner’s contention, the misbehavior report and corroborating testimony at the hearing from the correction officers who witnessed the physical confrontation provide substantial evidence to support the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964 [1990]; Matter of Singh v Coombe, 239 AD2d 721, 722 [1997]). Although petitioner asserts that the other inmate simply fell into him due to the shackles on his legs, this created a credibility issue for the Hearing Officer to resolve (see Matter of Cliff v De Celle, 260 AD2d 812, 813 [1999]).

Peters, J.P, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.