IN RE: Patrick MALONE (1999)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a disciplinary hearing at which petitioner pleaded guilty with an explanation to the charge of being out of place, petitioner was found guilty of rioting, participating in a demonstration and being out of place in violation of prison disciplinary rules.   At petitioner's request, the Hearing Officer reviewed a portion of the videotape of the riot in the recreation yards with petitioner present.   The Hearing Officer noted that positive identification of petitioner was precluded due to the poor quality of the videotape.   It appears from a review of the record, however, that the Hearing Officer viewed the wrong portion of the videotape.   Neither the Hearing Officer nor petitioner realized the error.   Nevertheless, the correction officer who videotaped the incident and authored the misbehavior report testified that he observed petitioner participating in the riot, knew petitioner by sight, and used the videotape to identify petitioner by name.   Contrary to petitioner's contention, this testimony provides substantial evidence to support the determination of his guilt (see, Matter of Ward v. Goord, 249 A.D.2d 711, 671 N.Y.S.2d 577).

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

MEMORANDUM DECISION.