Nieves v. Selsky

—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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. 796 Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from assaulting other inmates, possessing a weapon, interfering with an employee and engaging in violent conduct. At the hearing, petitioner also pleaded guilty to a verbal harassment charge. According to the misbehavior report, petitioner was observed slashing at another inmate through the bars of his cell. After the victim of the assault was moved away, the reporting correction officer observed petitioner throw something into his toilet and flush it several times. When that officer attempted to question petitioner, he swore at him and refused to speak with him. Petitioner’s administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt. We confirm. Contrary to petitioner’s contention, we find that the detailed misbehavior report, combined with the reporting officer’s testimony based upon his eyewitness observations, provide substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner denied possessing a weapon or assaulting the other inmate, the conflicting testimony merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Gonzalez v Selsky, 253 AD2d 940). Next, we conclude that petitioner has failed to substantiate his claim that the aid he received from his employee assistant was inadequate or less than meaningful (see, Matter of Johnson v Selsky, 257 AD2d 874, 875; Matter of Rowlett v Coombe, 242 AD2d 798, 799). Petitioner’s remaining contentions, including his claim of Hearing Officer bias, have been reviewed and, to the extent that they have been preserved for review, found to be lacking in merit. Mikoll, J. P., Mercure, Yesawich Jr., Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.