IN RE: Jason PENA (2002)

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.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit fighting, violent conduct, assault on another inmate and possession of a weapon.   Included in the evidence presented at petitioner's disciplinary hearing were two detailed misbehavior reports and the testimony of the correction officers who authored them.   The co-authors of the first report testified that they observed petitioner fighting with another inmate and making what appeared to be stabbing motions in the inmate's direction.   After the officers broke up the fight, petitioner ran into his cell where he was seen throwing something in the toilet.   The second inmate was taken to the infirmary where he was treated for stab wounds.   The officer who wrote the second misbehavior report testified that after the fight, he conducted a search of petitioner's cell where he found a five-inch long, sharpened metal shank in the toilet.

We find that substantial evidence supports the determination of petitioner's guilt (see, Matter of Lunney v. Selsky, 275 A.D.2d 820, 713 N.Y.S.2d 300;   Matter of Cruz v. Selsky, 264 A.D.2d 884, 694 N.Y.S.2d 811).   The exculpatory testimony given by petitioner and his inmate witnesses, in which it was averred that petitioner had not been assaulting the inmate victim but had been attempting to protect him from an assault perpetrated by a third inmate, presented issues of credibility that the Hearing Officer was free to resolve against petitioner (see, Matter of Melendez v. Goord, 285 A.D.2d 782, 727 N.Y.S.2d 206;  Matter of Ramirez v. Goord, 258 A.D.2d 785, 686 N.Y.S.2d 124).   The remaining issues raised by petitioner, including his assertion that the determination under review was tainted by procedural errors and Hearing Officer bias, have been reviewed and found to be without merit.

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

CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and LAHTINEN, JJ., concur.