| Matter of Perez v Dubray |
| 2008 NY Slip Op 08065 [55 AD3d 1119] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of John Perez, Petitioner, v Keith Dubray, as Director ofSpecial Housing and Inmate Disciplinary Programs, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of the Commissioner of Correctional Serviceswhich found petitioner guilty of violating a prison disciplinary rule.
As the result of an incident in which a correction officer observed petitioner throw punches atanother inmate, petitioner was charged in a misbehavior report with assault. He was found guilty of thecharge following a tier III disciplinary hearing and the determination was affirmed on administrativeappeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. Initially, we note that the matter was properly transferred to this Court inasmuch asthe petition raises a question of substantial evidence (see Matter of Young v Selsky, 32 AD3d 598 [2006]). Turning to themerits, the misbehavior report, together with the testimony of the correction officers familiar with theincident, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Selsky, 49 AD3d1108 [2008]; Matter of Peoples vSelsky, 33 AD3d 1179, 1180 [2006]). The contrary testimony of petitioner and his inmatewitnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Ramos v Selsky, 48 AD3d863, 864 [2008]). In view of the foregoing, we find no reason to disturb the determination of guilt.[*2]
Spain, J.P., Carpinello, Rose, Kavanagh and Stein, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.