Opinion
2013-11-27
In the Matter of Eliseo DELEON, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Eliseo Deleon, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Eliseo Deleon, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
A substance abuse program assistant overheard petitioner declare to other inmates that he was going to hit the assistant “over the head with a ... chair” if he was kept in the program for a prolonged period of time. Petitioner was accordingly charged in a misbehavior report with violating various prison disciplinary rules, and was found guilty of creating a disturbance following a tier III disciplinary hearing. The determination was affirmed upon administrativeappeal, and this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report and the testimony of the program assistant who authored it provide substantial evidence to support the determination of guilt ( see Matter of Phillips v. Fischer, 79 A.D.3d 1492, 1492, 913 N.Y.S.2d 416 [2010]; Matter of Johnson v. Selsky, 271 A.D.2d 770, 770–771, 705 N.Y.S.2d 446 [2000], lv. dismissed and denied95 N.Y.2d 918, 719 N.Y.S.2d 645, 742 N.E.2d 120 [2000] ). Petitioner's assertion that the misbehavior report was authored in retaliation for a grievance he had filed created a credibility issue for the Hearing Officer to resolve ( see Matter of Toliver v. Commissioner of N.Y. State Dept. of Corr. & Community Supervision, 107 A.D.3d 1283, 1284, 968 N.Y.S.2d 653 [2013] ).
Petitioner's remaining contentions, to the extent that they are properly preserved for our review, have been examined and found to lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. PETERS, P.J., ROSE, LAHTINEN and SPAIN, JJ., concur.