Calendar Date: November 2, 2011
Before: Mercure, Acting P.J., Spain, Malone Jr., Stein and Garry, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer observed petitioner and another inmate involved in a physical altercation and, as a result, petitioner was charged in a misbehavior report with assaulting an inmate, fighting and engaging in violent conduct. Shortly thereafter, while being pat frisked, petitioner allegedly dropped a scalpel blade on the floor and was charged in a second misbehavior report with possessing a weapon. A tier III disciplinary hearing was conducted on the charges contained in both reports. At the conclusion of the hearing, petitioner was found guilty of all of the charges. On administrative appeal, the weapons possession charge was dismissed due to the failure to maintain that misbehavior report for the record and the penalty was modified, but the determination was otherwise upheld. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the first misbehavior report and the testimony of the correction officer who authored it, supports the determination finding petitioner guilty of assaulting an inmate, fighting and engaging in violent conduct (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 ; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 ). Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Britt v Fischer, 54 AD3d 1087 ; Matter of Abdullah v Goord, 36 AD3d 978, 979 ). Moreover, we find no merit to petitioner's claim that he was improperly denied a videotape of the incident given that the record established that no such videotape existed (see Matter of Bridgeforth v Fischer, 78 AD3d 1401, 1401-1402 ; Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 ). We have considered petitioner's remaining claims and find them to be either unpreserved for our review or lacking in merit.
Mercure, Acting P.J., Spain, Malone Jr., Stein and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
ENTER: Robert D. Mayberger Clerk of the Court
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