IN RE: Miguel HARVEY

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Miguel HARVEY, Petitioner, v. R.K. WOODS, as Superintendent of Upstate Correctional Facility, Respondent.

-- July 31, 2008

Before:  CARDONA, P.J., PETERS, CARPINELLO, LAHTINEN and MALONE JR., JJ. Miguel Harvey, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, attempted to lessen the effects of a chemical agent that was being used by correction officers on another inmate by throwing water into that inmate's face.   Petitioner also encouraged the other inmate to continue resisting the officers and to defy their orders.   As a result, petitioner was charged in a misbehavior report with creating a disturbance, demonstration and interference with an employee.   Following a tier III disciplinary hearing, petitioner was found guilty of all charges.   An unsuccessful administrative appeal prompted petitioner to commence this CPLR article 78 proceeding.

We confirm.   The determination of guilt is supported by substantial evidence consisting of the misbehavior report and corroborating hearing testimony from the correction officer who authored it (see Matter of Rodriguez v. Selsky, 47 A.D.3d 1173, 1173, 849 N.Y.S.2d 734 [2008] ).   Contradictory testimony from the other inmate involved in the incident created credibility issues for resolution by the Hearing Officer (see Matter of Morillo v. Goord, 38 A.D.3d 947, 947-948, 832 N.Y.S.2d 301 [2007] ).

We have reviewed petitioner's remaining contentions, including his claims that he was improperly excluded from the hearing, he was denied adequate employee assistance, the hearing was untimely and the Hearing Officer was biased, and, to the extent preserved, find them to be unavailing.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

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