Williams v. Selsky

50 A.D.3d 1426, 856 N.Y.S.2d 698

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.

Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order, assaulting an officer, engaging in violent conduct and creating a disturbance. A tier III disciplinary hearing was conducted, at the conclusion of which petitioner was found guilty of all charges. That determination was administratively affirmed with a modified penalty and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. To the extent that the petition can be construed as raising a substantial evidence question, we find that the misbehavior report, related documentation and hearing testimony satisfy that standard (see Matter of Gonzalez v Goord, 44 AD3d 1180, 1180 [2007], lv denied 10 NY3d 701 [2008]). Petitioner’s denial of the charges created a credibility issue for resolution by the Hearing Officer (see Matter of Wesolowski v Donahue, 45 AD3d 1224, 1224 [2007]), as did his claim that the misbehavior report was fabricated and retaliatory in nature (see Matter of Ryan v Goord, 12 AD3d 799, 799 [2004]). As for petitioner’s assertion that the Hearing Officer was biased, it is neither substantiated in the record nor is there any indication that the determination at hand flowed from any purported bias (see Matter of McKinley v Goord, 40 AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]). Petitioner’s remaining contentions, including his claims that he was denied the right to present witness testimony and deprived of adequate employee assistance, have been examined and found to be unavailing.

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