IN RE: Rob C. RUSHING (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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting assault on a staff member, violent conduct and creating a disturbance.   According to the misbehavior report and the testimony of the correction officer who authored it, petitioner had punched him in the face without provocation.   A second officer, observing the scuffle, helped the first to subdue and handcuff petitioner.

Substantial evidence of petitioner's guilt was presented in the form of the misbehavior report, the testimony of the reporting officer and that of the second officer who stated that he had observed petitioner and the reporting officer engaged in a fight (see Matter of Orr v. Selsky, 290 A.D.2d 768, 769, 736 N.Y.S.2d 508;  Matter of Giles v. Selsky, 287 A.D.2d 829, 830, 731 N.Y.S.2d 532).   This evidence was disputed by petitioner who testified that the reporting officer, with the help of several other officers, had assaulted him because of his status as a convicted child abuser, causing him to suffer a split lip and two fractured ribs.   The disparity between petitioner's description of the incident and that of the correction officers raised an issue of credibility for resolution by the Hearing Officer (see Matter of McKins v. James, 285 A.D.2d 889, 890, 728 N.Y.S.2d 589;  Matter of Daum v. Goord, 274 A.D.2d 715, 716, 711 N.Y.S.2d 212).   As substantial evidence supports the determination under review, it will not be disturbed.   Petitioner's remaining contentions have been reviewed and found to be without merit.

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