IN RE: Jose SOTO (2000)

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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After an investigation and confidential information revealed that he actively participated in an assault on another inmate, petitioner was charged with violating the prison disciplinary rules which prohibit inmates from assaulting other inmates, fighting, engaging in violent conduct and being out of place.   Following a disciplinary hearing, the Hearing Officer failed to reach a disposition on the out of place charge but found petitioner guilty of the remaining three charges.   Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination and the matter was transferred to this Court.

We reject the contention that substantial evidence does not support the determination that petitioner was guilty of assaulting an inmate, fighting and engaging in violent conduct.   The correction officer who authored the misbehavior report testified that he investigated the assault and discovered that petitioner was one of three inmates who attacked the victim in a facility restroom.   The investigation disclosed that following a verbal confrontation, petitioner repeatedly struck the victim with his fists while another inmate cut him with a razorblade.   This testimony, coupled with the misbehavior report and the confidential information, provides substantial evidence to support the determination of guilt (see, Matter of Rosario v. Goord, 255 A.D.2d 851, 682 N.Y.S.2d 119;  Matter of Cooper v. Goord, 247 A.D.2d 666, 668 N.Y.S.2d 508;  Matter of Hazel v. Coombe, 239 A.D.2d 736, 657 N.Y.S.2d 265).

Moreover, our in camera review of the transcript of the confidential information leads us to conclude that the Hearing Officer properly found it to be credible and reliable (see, Matter of Rivera v. Selsky, 272 A.D.2d 708, 708 N.Y.S.2d 646;  Matter of Knight v. Goord, 267 A.D.2d 523, 698 N.Y.S.2d 922, lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578).   Although petitioner claims that he was not involved in the assault, this created a credibility issue that the Hearing Officer was entitled to resolve against petitioner (see, Matter of Washington v. Selsky, 271 A.D.2d 798, 707 N.Y.S.2d 250;  Matter of Nieves v. Selsky, 263 A.D.2d 795, 796, 694 N.Y.S.2d 796).

Petitioner's remaining arguments have been reviewed and rejected as unpersuasive.

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

PETERS, J.

CREW III, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.