HEATH v. WALKER (1998)

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

Matter of Herman HEATH, Petitioner, v. Hans WALKER, Superintendent, Auburn Correctional Facility, Respondent.

Decided: November 13, 1998

Before PINE, J.P., and HAYES, WISNER, PIGOTT and BOEHM, JJ.

Herman Heath, Auburn, pro se. Dennis C. Vacco, Attorney General, by Kathleen Dougherty, Albany, for respondent.

Petitioner was found guilty after a Tier III hearing of violating inmate rules 100.13 (7 NYCRR 270.2[B][1][iv] [fighting] ) and 106.10 (7 NYCRR 270.2[B] [7][i] [failing to obey promptly an order of a correction officer] ). The misbehavior report, together with the author's testimony, constitutes substantial evidence supporting the determination (see, Matter of Green v. Williams, 252 A.D.2d 974, 676 N.Y.S.2d 376; Matter of Rivers v. Williams, 252 A.D.2d 986, 676 N.Y.S.2d 379). The testimony of petitioner and the inmate witness called by him to testify merely raised an issue of credibility 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).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM:

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