| Matter of Ohnmacht v Goord |
| 2008 NY Slip Op 00135 [47 AD3d 1030] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of David Ohnmacht, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 a prison disciplinary rule.
During an altercation with a correction officer, petitioner struck the officer in the face. Hewas thereafter charged in a misbehavior report with assaulting staff and found guilty of thecharge following a tier III disciplinary hearing. The determination was later affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho authored it as well as another officer present in the area of the incident, provide substantialevidence supporting the determination of guilt (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). Thecontrary testimony given by petitioner and his inmate witness presented a credibility issue for theHearing Officer to resolve (see Matter ofThomas v Goord, 34 AD3d 1143, 1144 [2006]). Moreover, we find no error in theHearing Officer's refusal to recuse himself, nor do we find any indication that the Hearing Officerwas biased or that the determination flowed from any alleged bias (see Matter of Nelson v Goord, 33AD3d 1135, 1136 [2006]). Petitioner's remaining contentions are either lacking in merit orhave not been preserved for our review.[*2]
Mercure, J.P., Peters, Spain, Rose and Kane, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.