ROBERTS v. SELSKY (1998)

 After a Tier III hearing, petitioner was found guilty of violating inmate rule 101.10 (7 NYCRR 270.2[B][2][i] [inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts] ).   The misbehavior report constitutes substantial evidence supporting the determination (see, Matter of Parker v. Coughlin, 211 A.D.2d 929, 621 N.Y.S.2d 954;  see also, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   Petitioner's explanation of the incident at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer resolved in favor of the correction officer's version of the incident (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Contrary to petitioner's contention, the misbehavior report was not so discredited that it was insufficient to support the determination of guilt (cf., Matter of Horn v. Coughlin, 198 A.D.2d 745, 604 N.Y.S.2d 300).

 We reject petitioner's contention that intermittent gaps in the hearing transcript require annulment.  “[T]he missing testimony ‘is neither material to the determination nor of such significance as to preclude meaningful review’ (Matter of Rodriguez v. Coughlin, 167 A.D.2d 671, 563 N.Y.S.2d 248)” (Matter of Torres v. Coombe, 234 A.D.2d 710, 710-711, 651 N.Y.S.2d 642).

The record does not support petitioner's contention that the Hearing Officer was biased (see, Matter of Parker v. Coughlin, supra;  Matter of Martinez v. Scully, 194 A.D.2d 679, 599 N.Y.S.2d 104).   Petitioner's contention that the rules fail to state the range of disciplinary sanctions lacks merit (see, Matter of Coleman v. Kelly, 72 N.Y.2d 850, 852, 532 N.Y.S.2d 92, 527 N.E.2d 1228).   The penalty imposed is not excessive.

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: