| Matter of Brown v Selsky |
| 2008 NY Slip Op 02713 [49 AD3d 1108] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jonathan Brown, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
After petitioner was identified as being a member of a gang and having slashed anotherinmate with a folded can top, he was charged in a misbehavior report with assault, possession ofa weapon and unauthorized organizational activity. At the conclusion of the ensuing tier IIIdisciplinary hearing, petitioner was found guilty of all three charges. That determination wasaffirmed on administrative appeal, prompting petitioner to commence this CPLR article 78proceeding seeking annulment of the determination.
We confirm. The detailed misbehavior report, together with the extensive hearing testimony,comprise substantial evidence to support the determination of guilt (see Matter of Yancey v Conway, 46AD3d 1042 [2007]). Regarding petitioner's denial of the allegations against him, acredibility issue was created for resolution by the Hearing Officer (see Matter of Johnson v Goord, 46AD3d 1038, 1039 [2007]). As for petitioner's claim that he was denied the right to presentwitness testimony from another inmate, it is unpreserved for our review given [*2]petitioner's failure to object at the hearing (see Matter of Toledo v Selsky, 12AD3d 824, 825 [2004]) and, in any event, is without merit inasmuch as the inmate stated onthe record in petitioner's presence that he was unwilling to testify because he had no knowledgeof the matter (see Matter of Williams v Goord, 242 AD2d 842, 842 [1997]). Petitioner'sremaining contentions, to the extent not specifically addressed herein, have been examined andfound to be unavailing.
Carpinello, J.P., Rose, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.