| Matter of Peana v Fischer |
| 2008 NY Slip Op 06919 [54 AD3d 1126] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of John Peana, Petitioner, v Brian Fischer, 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.
While on the draft bus, petitioner complained to a correction officer that two other inmateshad assaulted him and broken his glasses. He then ignored the officer's directive to come to thefront of the bus. When the officer approached petitioner, petitioner began yelling and kicked theofficer in the leg. As a result, petitioner was charged in a misbehavior report with assaulting staff,refusing a direct order and creating a disturbance. He was found guilty of the charges following atier III disciplinary hearing. After the determination was affirmed on administrative appeal with amodified penalty, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, documentary evidence and testimony adduced at thehearing provide substantial evidence supporting the determination of guilt (see Matter of Credle v Selsky, 46AD3d 989, 990 [2007]; Matter ofAbdul-Khaliq v Goord, 34 AD3d 872 [2006]). The contrary testimony of petitioner andhis inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Russell v Selsky, 50AD3d 1412, 1412-1413 [2008]; Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]).Accordingly, we find no reason to disturb respondent's determination.[*2]
Peters, J.P., Spain, Lahtinen, Kavanagh and Stein, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.