Opinion
93575.
November 26, 2003.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Superintendent of Elmira Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Rushawn Young, Malone, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondents.
Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.
MEMORANDUM AND JUDGMENT
Following a tier II disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from interfering with an employee, harassment, refusing a direct order and refusing to submit to a frisk. As related in the misbehavior report, petitioner was leaving the facility's recreation yard when a correction officer gave him a direct order to proceed to the frisk area. Petitioner responded by addressing an obscene remark to the officer. He then refused to comply with orders to place his hands on the fence so that he could be frisked.
Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the misbehavior report and the testimony given by the correction officer who prepared the report based upon his observation of and participation in the incident, as well as by the testimony of a second officer who was required to assist the reporting officer in subduing petitioner (see Matter of Vasquez v. Goord, 301 A.D.2d 986; Matter of Burr v. Goord, 284 A.D.2d 778, lv denied 97 N.Y.2d 601). Any inconsistencies present in the hearing testimony created credibility issues for resolution by the Hearing Officer (see Matter of Ng v. Goord, 285 A.D.2d 791, appeal dismissed, lv denied 97 N.Y.2d 671).
We reject petitioner's contention that the entry of an incorrect date on the hearing disposition form indicates that the Hearing Officer had prejudged his guilt. As petitioner failed to raise this issue in his administrative appeal, it has not been preserved for our review (see Matter of Hunt v. Goord, 252 A.D.2d 982, 982). In any event, were we to consider it, we would be unpersuaded. The correct decision date of the hearing is accurately listed on several other documents relating to this matter. It is apparent that this clerical error had no prejudicial impact upon the outcome of petitioner's case nor does it indicate that petitioner's hearing was conducted in other than a fair and impartial manner (see Matter of Samuel v. Goord, 277 A.D.2d 584, 585). The remaining issues raised by petitioner have been examined and found to be without merit.
Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.