Opinion
Decided and Entered: July 5, 2001.
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 certain prison disciplinary rules.
Gregory Lee, Elmira, petitioner in person.
Eliot Spitzer, Attorney-General (Peter H. Schiff of counsel), Albany, for respondent.
Before: Cardona, P.J., Mercure, Peters, Carpinello and, Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
The misbehavior report and testimony of the correction officer who authored it and who had investigated the incident provide substantial evidence to support the determination finding petitioner guilty of violent conduct and other charges arising out of the assault of another inmate, notwithstanding that the correction officer did not witness the assault and that the victim subsequently denied that petitioner assaulted him (see, Matter of Primo v. Goord, 266 A.D.2d 602). Petitioner's claims that he was denied documentary evidence and witnesses were not raised on his administrative appeal and, therefore, they were not preserved for our review (see, Matter of Chujoi v. Selsky, 272 A.D.2d 801, lv denied 95 N.Y.2d 762). In any event, were we to consider the claims, we would find them insufficient to warrant annulment of the determination.
Cardona, P.J., Mercure, Peters, Carpinello and Lahtinen, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.