SANTOS v. GOORD (1998)

 Petitioner commenced this CPLR article 78 proceeding to challenge a determination that he violated inmate rules by stabbing another inmate.   We reject his contention that the misbehavior report is defective because it fails to state the specific role that petitioner played in the assault (see, 7 NYCRR 251-3.1[c] ).  The misbehavior report states that the inmate victim was assaulted by three persons and sustained four stab wounds.   The victim testified that each of the three individuals struck him with a weapon.   Thus, the report contained the required specificity.

 Petitioner contends that the testimony of the victim is incredible as a matter of law and that the determination therefore is not supported by substantial evidence.   We disagree.   His testimony is not “manifestly untrue, physically impossible, contrary to experience or self-contradictory” (Matter of Welcher v. Sobol, 227 A.D.2d 770, 772, 642 N.Y.S.2d 370;  see also, People v. Germeo, 188 A.D.2d 1027, 592 N.Y.S.2d 191;  People v. Christian [appeal No. 1], 139 A.D.2d 896, 527 N.Y.S.2d 1019, lv. denied 71 N.Y.2d 1024, 530 N.Y.S.2d 559, 526 N.E.2d 51).   Further, the fact that the victim gave a false explanation on a prior occasion for refusing to testify does not render his testimony incredible as a matter of law (see, People v. Morales, 238 A.D.2d 124, 655 N.Y.S.2d 765, lv. denied 89 N.Y.2d 1097, 660 N.Y.S.2d 391, 682 N.E.2d 992).   Whether the witness's subsequent explanation for that falsehood was credible was a matter for the Hearing Officer to resolve (see, Matter of Rivers v. Williams, 252 A.D.2d 986, 676 N.Y.S.2d 379).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: