Bethea v. Selsky

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. After an incident in which petitioner was observed fighting with other inmates in the recreation yard, he was found guilty of fighting, engaging in violent conduct, disturbing the order of the facility and failing to obey a direct order. Petitioner argues, inter alia, that the administrative determination is not supported by substantial evidence. Based upon our review of the record, we find this claim to be without merit. Although two inmate witnesses testified that they did not see petitioner participate in the fight, the correction officer who prepared the misbehavior report and who was present in the yard at the time of the fight stated that he saw petitioner exchanging kicks and blows with other inmates. In addition, the unusual incident report indicated that, after the incident, petitioner had dried 787 blood on his hands. In view of this evidence, as well as the fact that the Hearing Officer could choose to credit the testimony of the correction officer over that of the inmates (see, Matter of Lashway v Stinson, 226 AD2d 874; Matter of Silva v Coughlin, 187 AD2d 763), we find that the administrative determination is supported by substantial evidence. We have considered petitioner’s remaining claims and find them to be without merit. Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.