IN RE: Levie ROSE (1999)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondents which found petitioner guilty of violating a prison disciplinary rule.

Following a tier II disciplinary hearing petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule prohibiting the starting of a fire after a correction officer witnessed him using his cigarette to ignite a napkin.   Contrary to petitioner's contention, we find that the misbehavior report and the testimony of its author, the correction officer who witnessed the event and extinguished the smoldering napkin, provide substantial evidence of petitioner's guilt (see, Matter of Farid v. Coombe, 236 A.D.2d 660, 653 N.Y.S.2d 715).   Although petitioner and his witness testified to the contrary, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811, 669 N.Y.S.2d 403).   Petitioner's remaining argument has been examined and found to be similarly lacking in merit.

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

MEMORANDUM DECISION.