Calendar Date: December 12, 2011
Before: Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.
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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
After being directed by a correction officer to lock into his cell, petitioner refused, became aggressive and eventually swung a metal can lid at the officer in a threatening manner. As a result, he was charged in a misbehavior report with assaulting staff, engaging in violent conduct, refusing a direct order, possessing a weapon and making threats. Following a tier III disciplinary hearing, he was found guilty of all of the charges except for assaulting staff and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Hamilton v Fischer, 84 AD3d 1614 ; Matter of Malik v Bezio, 76 AD3d 1128, 1128 ). Petitioner's denial of the charges and claim that the misbehavior report was fabricated presented a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v Fischer, 87 AD3d 778, 779 ; Matter of Cooper v Prack, 85 AD3d 1470, 1471 ). Furthermore, his assertion that the Hearing Officer was biased has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Britt v Fischer, 54 AD3d 1087 ).
Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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