Opinion
March 24, 1988
Appeal from the Supreme Court, Clinton County.
Petitioner was an inmate at Green Haven Correctional Facility when, on September 6, 1986, he was served with a misbehavior report charging him with violating a facility rule prohibiting inmates from engaging in sexual acts. A Superintendent's proceeding was held after which petitioner was found guilty as charged. Upon administrative appeal, the finding of guilt was affirmed by the Commissioner of Correctional Services. Petitioner then commenced this CPLR article 78 proceeding which has been transferred to this court for disposition.
Petitioner claims that the determination is not supported by substantial evidence. We disagree. Although the correction officer who issued the misbehavior report did not testify, a written misbehavior report can constitute substantial evidence to support a determination that an inmate violated a prison disciplinary rule (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130). Additionally, there was testimony by another correction officer which, although he did not witness the entire incident, tended to support the facts alleged in the misbehavior report. Petitioner offered testimony in opposition. This, however, presented only an issue of credibility for the Hearing Officer to resolve (see, Matter of Jackson v. LeFevre, 128 A.D.2d 1001, 1002; Matter of Witherspoon v. LeFevre, 82 A.D.2d 959, 960, appeal dismissed 54 N.Y.2d 829, lv denied 54 N.Y.2d 606). The misbehavior report here was made out and signed by the correction officer witnessing the incident; it described with specificity the scene witnessed and the rule allegedly violated (see, People ex rel. Vega v. Smith, supra, at 140). In such circumstances, the written report and the testimony presented were sufficient to constitute substantial evidence supporting the determination that petitioner violated the disciplinary rule as charged.
Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Mercure, JJ., concur.