| Matter of Benson v Selsky |
| 2008 NY Slip Op 03360 [50 AD3d 1347] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Wayne Benson, 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.
Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinarydetermination finding him guilty of creating a disturbance, engaging in violent conduct,assaulting an inmate, fighting, possessing a weapon and refusing a direct order. We now confirm.
The misbehavior report, as amplified by hearing testimony from the correction officer whoauthored it, relates that petitioner went after another inmate with a mop stick and then, ignoringnumerous orders from the officer to stop, proceeded to exchange punches with the inmate. Theforegoing constitutes substantial evidence to support the determination of guilt (see Matter of Chavis v Goord, 45AD3d 1063, 1064 [2007]). To the extent that petitioner offered exculpatory statements,credibility issues were created for resolution by the Hearing Officer (see Matter of Vigliotti v Selsky, 45AD3d 946, 946-947 [2007]). Petitioner's remaining contentions, including his claim that hewas denied an impartial hearing, have been considered and found to be unavailing.[*2]
Cardona, P.J., Spain, Lahtinen, Kane and Stein, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.