Matter of Tafari v Selsky

2006 NY Slip Op 06442

Decided on September 14, 2006

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 14, 2006
500036



Calendar Date: August 7, 2006
Before: Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ.


Injah Tafari, Napanoch, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Patrick Barnett-
Mulligan of counsel), for respondent.
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 certain prison
disciplinary rules.
A misbehavior report charged petitioner with creating a
disturbance, refusing a direct order and violating a movement
regulation after he resisted efforts by a correction officer to escort him
to his cell. At the conclusion of a tier III disciplinary hearing,
petitioner was found guilty of all charges except creating a
disturbance. After exhausting his administrative remedies,
petitioner commenced this CPLR article 78 proceeding.
fnref='1'> Although Supreme Court properly transferred the proceeding to this Court because petitioner asserted in his petition that the determination was not supported by substantial evidence, petitioner fails to raise such issue in his appellate brief and, thus, that issue is deemed abandoned (see Matter of Vallade v Goord, 11 AD3d 786, 787 n [2004]).
We confirm. Petitioner's contention that the Hearing Officer
erred by failing to consider evidence of his mental illness is
without merit. "Although a Hearing Officer must consider an
inmate's mental condition in rendering a determination when the
inmate's mental state is at issue" (Matter of Siao-Pao v Selsky,
274 AD2d 698, 699 [2000], lv denied 95 NY2d 767 [2000]
[citation omitted]), petitioner submitted no evidence to establish
that his mental history was relevant to the proceeding and,
despite his claim to the contrary, gave every indication that he was
lucid at the time that the incident occurred (see Matter of Spirles
v Goord, 308 AD2d 610, 611 [2003]). Petitioner's further claim
that the misbehavior report arose in retaliation for his past
conduct toward correction officers created a credibility issue that the
Hearing Officer was entitled to resolve against him (see Matter
of Raqiyb v Goord, 30 AD3d 810, ___, 816 NYS2d 596, 596
[2006]).
Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.