Opinion
October 23, 2008.
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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Before: Spain, J.P., Carpinello, Rose, Kavanagh and Stein, JJ.
As the result of an incident in which a correction officer observed petitioner throw punches at another inmate, petitioner was charged in a misbehavior report with assault. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. Initially, we note that the matter was properly transferred to this Court inasmuch as the petition raises a question of substantial evidence ( see Matter of Young v Selsky, 32 AD3d 598). Turning to the merits, the misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt ( see Matter of Brown v Selsky, 49 AD3d 1108; Matter of Peoples v Selsky, 33 AD3d 1179, 1180). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve ( see Matter of Ramos v Selsky, 48 AD3d 863, 864). In view of the foregoing, we find no reason to disturb the determination of guilt.
Adjudged that the determination is confirmed, without costs, and petition dismissed.