| Matter of Moxley v Selsky |
| 2007 NY Slip Op 08812 [45 AD3d 1084] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of Chaka Moxley, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, resisted a frisk by a correction officer and then continued to fight backas other correction officers attempted to subdue him. As a result, he was charged in amisbehavior report with refusing to submit to a frisk, interfering with an employee and assaultingthe staff. Following a tier III disciplinary hearing, he was found guilty of refusing to submit to afrisk and interfering with an employee but not guilty of assaulting the staff. The determinationwas affirmed upon administrative review and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation comprise substantialevidence to support the determination of guilt (see Matter of Britt v Goord, 39 AD3d 994, 994 [2007]; Matter of Laureano v Goord, 36 AD3d1175, 1176 [2007]). Petitioner has not preserved [*2]hisclaim that the Hearing Officer should have interviewed those inmates who refused to testify. Inany event, the refusal forms and testimony of the correction officer who obtained them supportthe conclusion that there was no deprivation of his right to call witnesses (see Matter of McIver v Goord, 37AD3d 943, 945 [2007]; Matter ofHill v Selsky, 19 AD3d 64, 66 [2005]). To the extent preserved, we have examinedpetitioner's remaining contentions and find them to be unavailing.
Cardona, P.J., Spain, Mugglin, Rose and Kane, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.