Curl v. Kelly

— Determination unanimously confirmed and petition dismissed. Memorandum: Since the only issue raised in this CPLR article 78 proceeding is whether the determination of the Hearing Officer is supported by substantial evidence, Special Term erred in deciding the matter on the merits rather than transferring it to this court (CPLR 7804 [g]). Nonetheless, we will consider the matter as if it had been properly transferred in the first instance (Matter of O’Brien v Steisel, 104 AD2d 817). It has been established that "[a] written misbehavior report by itself can constitute substantial evidence of an inmate’s misconduct” (Matter of Perez v Wilmot, 67 NY2d 615, 616; People ex rel. Vega v Smith, 66 NY2d 130). The misbehavior report here describes, with specificity, an incident which the correction officer claims to have witnessed, and the rule allegedly violated; it is dated the same day as the incident and is signed by its author. Thus, we find that the report is sufficiently relevant and probative to support the determination of the Hearing Officer. "If petitioner wished to cross-examine the charging officer, he had the right to call the officer as a witness” (Matter of Perez v Wilmot, supra, p 617; see, Matter of Coleman v Coombe, 65 NY2d 777). Petitioner called witnesses to testify in exoneration of the charged misconduct. The essential issue at the hearing was credibility, and the Hearing Officer was entitled to credit the charging officer’s report (Matter of Perez v Wilmot, supra, p 617; People ex rel. Vega v Smith, supra, p 140). (Appeal from judgment of Supreme Court, Wyoming County, Newman, J. — art 78.) Present — Callahan, J. P., Denman, Boomer, Pine and Balio, JJ.