Opinion
93076
Decided and Entered: July 17, 2003.
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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Joseph Pope, Auburn, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: Crew III, J.P., Peters, Carpinello, Mugglin and, Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on a staff member and refusing to obey a direct order. According to the misbehavior report, petitioner was signing paperwork under the supervision of three correction officers when he ignored an order to remain facing the table, turned around and struck one of the officers in the chest with his pen.
The requisite substantial evidence of petitioner's guilt was presented in the form of the misbehavior report, written by the correction officer who was the victim of the assault and endorsed by the two officers who witnessed it, together with the consistent hearing testimony of all three officers (see Matter of Rushing v. Goord, 298 A.D.2d 782; Matter of Orr v. Selsky, 290 A.D.2d 768, 769). To the extent that petitioner's description of the incident was at variance with that given by the correction officers, this presented an issue of credibility for resolution by the Hearing Officer (see Matter of Gonzales v. Goord, 303 A.D.2d 802, 803). Petitioner's assertion that various procedural errors deprived him of a fair hearing has been examined and found to be without merit.
Crew III, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.