Opinion
November 5, 1992
Appeal from the Supreme Court, Clinton County.
We find that the misbehavior report, coupled with the testimony of the correction officer who authored the report and witnessed the incident, established that petitioner exchanged punches with another inmate and thus provided substantial evidence to support the Hearing Officer's finding of guilt (see, Matter of Bernacet v Coughlin, 145 A.D.2d 802, lv denied 74 N.Y.2d 603). Petitioner's reliance on Matter of Parker v Kelly ( 140 A.D.2d 993) for the proposition that his conduct was defensive and therefore not sufficient to support the finding of guilt is misplaced. Here the correction officer witnessed petitioner affirmatively strike the other inmate involved in the incident, whereas in Parker the petitioner merely pushed away an inmate who had been the initial aggressor (see, Matter of Abreu v Coughlin, 157 A.D.2d 1028). Testimony of petitioner and his witnesses, which contradicted the correction officer's testimony, presented a credibility issue for the Hearing Officer to resolve (see, Matter of Valera v Selsky, 185 A.D.2d 481; Matter of Abreu v Coughlin, supra).
Mikoll, J.P., Yesawich Jr., Crew III, Mahoney and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.