Opinion
December 30, 1999
Determination unanimously confirmed without costs and petition dismissed.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., SCUDDER AND CALLAHAN, JJ.
Memorandum:
The misbehavior report and the testimony of its author constitute substantial evidence to support the determination that petitioner violated various inmate rules in connection with his fight with another inmate ( see, Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). The assertions of petitioner and the other inmate that petitioner did not possess a weapon during the fight raised a credibility issue for the Hearing Officer to resolve ( see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). We reject petitioner's contention that annulment of the determination is required because the hearing transcript contains numerous indications that the tape recording is inaudible. Because petitioner suffers from a severe speech impediment, he was afforded an opportunity to submit his plea, ask questions, respond to questions and provide a written statement of his defense to the Hearing Officer. As a result, petitioner was able to present his defense, and the inaudible portions of the hearing "are not `so significant as to preclude meaningful review of the proceedings, particularly as they relate to petitioner's arguments'" ( Matter of Webb v. Goord, 265 A.D.2d 809 [decided Oct. 1, 1999], quoting Matter of Fletcher v. Selsky, 199 A.D.2d 865, 866, lv denied 83 N.Y.2d 753). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.)