IN RE: Leroy ALLEN (2001)

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule which prohibits organizing, participating in or urging other inmates to participate in actions that might disrupt the order of the facility.   The misbehavior report relates that petitioner was encouraging inmates to file grievances complaining of unfair pay in the mess hall and urged them to “stick together against the [correction] officers in the mess hall”.   Although the Hearing Officer acknowledged petitioner's right to file grievances, he credited the testimony of the correction officer who authored the misbehavior report that petitioner's conduct went beyond talking and his remarks were an attempt to organize the inmates to unite in a manner that was detrimental to the facility.   Any contrary testimony presented by petitioner and his witnesses presented a credibility issue for resolution by the Hearing Officer (see, Matter of Thomas v. Goord, 286 A.D.2d 839, 730 N.Y.S.2d 461, 462).   Accordingly, substantial evidence supports the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).

Furthermore, we reject petitioner's assertion that the misbehavior report was written in retaliation for the many grievances he had filed against various correction officers.   The author of the misbehavior report denied that the charges were retaliatory and he was unaware if he was the subject of any of petitioner's grievances.   The Hearing Officer was free to credit the testimony of the correction officer over that of petitioner (see, Matter of Saunders v. Goord, 285 A.D.2d 792, 727 N.Y.S.2d 666;  Matter of Dabney v. Selsky, 284 A.D.2d 817, 726 N.Y.S.2d 602).

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