IN RE: David OHNMACHT (2008)

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 which found petitioner guilty of violating a prison disciplinary rule.

During an altercation with a correction officer, petitioner struck the officer in the face.   He was thereafter charged in a misbehavior report with assaulting staff and found guilty of the charge following a tier III disciplinary hearing.   The determination was later affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of the correction officer who authored it as well as another officer present in the area of the incident, provide substantial evidence supporting the determination of guilt (see Matter of Abdullah v. Goord, 36 A.D.3d 978, 979, 826 N.Y.S.2d 505 [2007] ).   The contrary testimony given by petitioner and his inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Thomas v. Goord, 34 A.D.3d 1143, 1144, 824 N.Y.S.2d 495 [2006] ).   Moreover, we find no error in the Hearing Officer's refusal to recuse himself, nor do we find any indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Nelson v. Goord, 33 A.D.3d 1135, 1136, 822 N.Y.S.2d 816 [2006] ).   Petitioner's remaining contentions are either lacking in merit or have not been preserved for our review.

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