IN RE: Larry JOHNSON (2006)

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 certain prison disciplinary rules.

Petitioner refused to return to his cell while being escorted from the first aid corridor and struck a correction officer with a closed fist.   Other officers responded and assisted in placing petitioner in mechanical restraints.   During the struggle, petitioner bit one of the correction officers on the wrist.   As a result, two misbehavior reports were filed against petitioner, one charging him with refusing a direct order, assaulting staff, disturbing the order of the facility and violating facility movement regulations and a second charging him with assaulting staff.   He was found guilty of all charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior reports, together with petitioner's admission that he struck and bit correction officers while they were attempting to subdue him, provide substantial evidence supporting the determination of guilt (see Matter of Amaker v. Carpenter, 28 A.D.3d 828, 829, 811 N.Y.S.2d 821 [2006];  Matter of Lebron v. McGinnis, 26 A.D.3d 658, 658, 810 N.Y.S.2d 526 [2006], lv. denied 7 N.Y.3d 704, 819 N.Y.S.2d 871, 853 N.E.2d 242 [2006] ).   Petitioner's claim that he was acting in self-defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Carter v. Goord, 8 A.D.3d 771, 772, 778 N.Y.S.2d 234 [2004];  Matter of Bingham v. Goord, 302 A.D.2d 837, 838, 754 N.Y.S.2d 606 [2003] ).   Moreover, inasmuch as petitioner told the Hearing Officer that he did not wish to call any witnesses at the hearing, there is no merit to his claim that he was improperly denied the right to call witnesses (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 142, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985];  Matter of Morales v. Selsky, 1 A.D.3d 848, 849, 767 N.Y.S.2d 288 [2003], lv. denied 1 N.Y.3d 510, 777 N.Y.S.2d 19, 808 N.E.2d 1278 [2004] ).

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