| Matter of Smith v Goord |
| 2007 NY Slip Op 09146 [45 AD3d 1119] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Brunce Smith, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
During an incident in which petitioner jumped on the back of a correction sergeant andattempted to take his baton, a violent struggle occurred which eventually resulted in petitionerbeing placed in handcuffs. He was thereafter charged in a misbehavior report with assaultingstaff and engaging in violent conduct. Following a tier III disciplinary hearing, he was foundguilty of both charges. The determination was affirmed on administrative appeal with a modifiedpenalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Roye v Goord, 34 AD3d 1134, 1134 [2006]; Matter of Pulliam v Whitmore, 24AD3d 921, 922 [2005]). Petitioner's contrary testimony presented a credibility issue for theHearing Officer to resolve (see Matter of Lamage v Goord, 285 AD2d 724, 724 [2001],appeal dismissed 97 NY2d 639 [2001]; Matter of Grant v Selsky, 281 AD2d 676,677 [2001]). Moreover, the record discloses that all of the reports that existed, which wereprepared by officers who responded to the incident, were provided to petitioner. Consequently,there is no merit to his claim that he was improperly [*2]denieddocuments (see Matter of Tafari vSelsky, 34 AD3d 943, 944 [2006], lv denied 8 NY3d 809 [2007]; Matter of Mullen v Superintendent ofSouthport Correctional Facility, 29 AD3d 1244, 1244 [2006]). His remainingcontentions have either not been preserved for our review or are lacking in merit.
Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.