Opinion
September 26, 2002.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Superintendent of Upstate Correctional Facility and a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, interference with an employee and harassment as a result of a May 26, 2001 incident. According to evidence adduced at the tier II disciplinary hearing, petitioner interfered with a correction officer's counseling of another inmate and then harassed the correction officer when ordered to leave. Petitioner was found guilty of refusing a direct order and harassment, and the determination was upheld on administrative appeal. Two days later, on May 28, 2001, petitioner was charged in a second misbehavior report with making threats and harassment after allegedly leaving the food line, approaching the same correction officer and threatening him. After a tier III disciplinary hearing, petitioner was again found guilty of the charges and the determination was affirmed after administrative review.
The charge of interference was abandoned at the hearing.
Petitioner commenced this CPLR article 78 proceeding challenging the determinations, claiming, inter alia, that they were not supported by substantial evidence. We disagree. Both disciplinary determinations are supported by substantial evidence in the form of the misbehavior reports and the eyewitness testimony of the reporting correction officer (see Matter of Vega v. Selsky, 293 A.D.2d 860; Matter of Cliff v. Brady, 290 A.D.2d 895, 895-896, lv dismissed and denied 98 N.Y.2d 642). Petitioner's claims that the misbehavior reports were written in retaliation for previously filed grievances "presented a question of credibility for the Hearing Officer to resolve" (Matter of Cliff v Brady, supra at 896; see Matter of Dawes v. Selsky, 280 A.D.2d 816, 816-817, lv denied 96 N.Y.2d 712), as did the exculpatory testimony of petitioner and his inmate witnesses (see Matter of Crews v. O'Keefe, 283 A.D.2d 692, 693). Likewise, we reject petitioner's claims of hearing officer bias. The record establishes that the hearings were "conducted in a fair and impartial manner and that the determinations under review flowed directly from the evidence presented and were not the product of bias" (Matter of Tumminia v. Senkowski, 290 A.D.2d 902, 903). Petitioner's remaining contentions have been reviewed and found to be without merit.
Crew III, J.P., Peters, Mugglin and Lahtimen, JJ., concur.
Adjudged that the determinations are confirmed, without costs, and petition dismissed.