IN RE: David MARTINEZ (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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After a correction officer confiscated a soda can from his secured hospital room, petitioner struck the officer and became involved in a physical altercation.   He was thereafter charged in a misbehavior report with assaulting staff and interfering with an employee.   Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, related documentation and testimony presented at the hearing provide substantial evidence supporting the determination of guilt (see Matter of Abdul-Khaliq v. Goord, 34 A.D.3d 872, 872, 822 N.Y.S.2d 742 [2006];  Matter of Green v. Goord, 26 A.D.3d 562, 563, 807 N.Y.S.2d 729 [2006] ).   While petitioner denied assaulting the officer, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Wilson v. Goord, 23 A.D.3d 727, 803 N.Y.S.2d 311 [2005] ).   Moreover, we find no merit to petitioner's claim that he was improperly denied the testimony of an inmate witness inasmuch as this witness executed a written refusal form sufficiently explaining his absence (see Matter of Hill v. Selsky, 19 A.D.3d 64, 66-67, 795 N.Y.S.2d 794 [2005];  Matter of Claudio v. Selsky, 4 A.D.3d 702, 703, 772 N.Y.S.2d 424 [2004] ).   Finally, petitioner's claim that he was denied adequate employee assistance is not substantiated by the record and, in any event, there has been no showing that he was prejudiced (see Matter of White v. Selsky, 3 A.D.3d 762, 763, 770 N.Y.S.2d 811 [2004] ).

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