| Matter of Adams v Selsky |
| 2008 NY Slip Op 06535 [54 AD3d 477] |
| August 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of James Adams, 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, a prison inmate, was observed lunging at another inmate and stabbing him in theneck area. The weapon used by petitioner was recovered after he dropped it to the floor and theweapon's sheath was found in his pants pocket. Petitioner was thereafter charged in amisbehavior report with assault, possession of a weapon and fighting. A tier III disciplinaryhearing ensued, at the conclusion of which petitioner was found guilty of assault and possessionof a weapon and not guilty of fighting. Following an unsuccessful administrative appeal,petitioner initiated this CPLR article 78 proceeding seeking annulment.
We confirm. To the extent that petitioner's allegations can be construed as forming achallenge to the determination of guilt on the ground that the evidence in support thereof wasinsufficient, we find that the detailed misbehavior report, together with the corroborating hearingtestimony from the correction officer who witnessed the incident and authored the report, providesubstantial evidence to uphold the determination (see Matter of McCloud v Selsky, 45 AD3d 1127, 1128 [2007]).Petitioner's claims that the misbehavior report and supporting [*2]documentation were defective and that he was denied the right topresent witness testimony have been examined and found to be unavailing.
Spain, J.P., Carpinello, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.