IN RE: Varsey JOHNSON (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 certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination which found him guilty of refusing a direct order and creating a disturbance.   According to the misbehavior report, although petitioner was among a group of inmates in the commissary area that was twice given a direct order to lower their voices, petitioner nevertheless continued to speak in a loud manner.   The misbehavior report and the hearing testimony of the correction officer that authored it provide substantial evidence to support the determination of guilt (see Matter of Sanders v. Goord, 47 A.D.3d 987, 988, 849 N.Y.S.2d 329 [2008];  Matter of Martin v. Goord, 46 A.D.3d 1294, 1295, 847 N.Y.S.2d 868 [2007] ).   Petitioner's claim that he was not among the group involved in the incident created a credibility issue for the Hearing Officer to resolve (see Matter of Martin v. Goord, 46 A.D.3d at 1295, 847 N.Y.S.2d 868;  Matter of Smith v. Goord, 45 A.D.3d 1119, 1120, 844 N.Y.S.2d 919 [2007] ).   Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to inform him of the charges and to enable him to prepare a defense (see Matter of Reddick v. Goord, 42 A.D.3d 764, 764, 838 N.Y.S.2d 793 [2007];  Matter of Morillo v. Goord, 38 A.D.3d 947, 948, 832 N.Y.S.2d 301 [2007] ).   Petitioner's remaining claim of hearing officer bias is not preserved and, in any event, is not persuasive.

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