| Matter of Perez v Bezio |
| 2010 NY Slip Op 06679 [76 AD3d 1134] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eugene Perez, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
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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 an incident in the prison commissary during which petitioner allegedly struck acorrection officer in the back, he was served with a misbehavior report charging him withassaulting staff, engaging in violent conduct and refusing a direct order. Following a tier IIIdisciplinary hearing, petitioner was found guilty of all charges. That determination was upheld onadministrative appeal and petitioner, thereafter, commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, the testimony of the correction officerinvolved in the incident and the supporting documentation provide substantial evidence tosupport the determination of guilt (seeMatter of West v Fischer, 73 AD3d 1301 [2010]; Matter of Brown v Taylor, 62 AD3d 1230, 1231-1232 [2009]). Theconflicting testimony of petitioner and his inmate witnesses raised a credibility issue to beresolved by the Hearing Officer (seeMatter of Sital v Fischer, 73 AD3d 1348, 1349 [2010]; Matter of Norris v Fischer, 71 AD3d1211, 1212 [2010]). Finally, we reject petitioner's contention that the Hearing Officerimproperly denied access to a videotape of the incident, where the only evidence in the recordindicates that no such recording was ever made (see Matter of Vigliotti v Duncan, 10 AD3d 776, 777 [2004],[*2]lv dismissed 4 NY3d 738 [2004]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.