ALLAH v. SELSKY (1999)

In this CPLR article 78 proceeding, petitioner challenges a prison disciplinary determination finding him guilty of violating inmate rules 105.12 (7 NYCRR 270.2[B][6][iii] [unauthorized organizational activity] ) and 106.10 (7 NYCRR 270.2[B][7][i] [disobeying a direct order] ).   Respondents imposed a penalty of six months' confinement in the Special Housing Unit with loss of all privileges and loss of six months' good time.

 The determination is supported by substantial evidence.   Correction officers identified petitioner as the prisoner who led a chant relating to the “Bloods”, an unauthorized prison gang.   The assertions of petitioner that the correction officers were not in a position to see him and that the night lights were out, making identification impossible, raised a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   There is no merit to petitioner's challenges to the Hearing Officer's impartiality, the fairness of the hearing procedure, or the adequacy of the employee assistance (see, Matter of Ortiz v. Rourke, 241 A.D.2d 962, 963, 661 N.Y.S.2d 401;   Matter of Barnhill v. Coombe, 239 A.D.2d 719, 720-721, 657 N.Y.S.2d 492;  see also, 7 NYCRR 251-4.2;  Matter of Fletcher v. Murphy, 249 A.D.2d 638, 639, 670 N.Y.S.2d 809).   The penalty does not constitute an abuse of discretion (see, CPLR 7803[3];  Matter of Davidson v. Coughlin, 219 A.D.2d 843, 844, 631 N.Y.S.2d 949, lv. denied 87 N.Y.2d 808, 641 N.Y.S.2d 830, 664 N.E.2d 896;  Matter of Perez v. Coughlin, 202 A.D.2d 1056, 1056-1057, 610 N.Y.S.2d 120).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: