Fortune v. Coughlin

— 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. The misbehavior report was authored by one of the correction officers who witnessed the incident. In addition, at the hearing that correction officer confirmed what he wrote in the report and testified that he was "absolutely sure” it was petitioner who was engaged in the fight which apparently set 968 off the general disturbance and assault on facility staff. A second positive identification was also made by another correction officer present at the scene. Under the circumstances, the misbehavior report, coupled with the testimony of the correction officers at the hearing, provided substantial evidence to support the finding of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). Although petitioner denied that he was fighting and produced inmate witnesses corroborating his version, this raised questions of credibility which were for the Hearing Officer to resolve (see, Matter of Hernandez v LeFevre, 150 AD2d 954, lv denied 74 NY2d 615). Petitioner’s remaining contentions have been considered and rejected as either unpreserved for review or lacking in merit. Weiss, P. J., Yesawich Jr., Crew III, Casey and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.