IN RE: David F. LARKINS (2006)

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

While petitioner was being removed from his cell to attend recreation, he attempted to kick a correction officer and struggled with the officer until a waist chain and leg irons were finally applied.   Thereafter, petitioner was charged in a misbehavior report with attempting to assault staff, refusing a direct order, engaging in violent conduct and interfering with an employee.   He was found guilty of these charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Grant v. Selsky, 281 A.D.2d 676, 677, 721 N.Y.S.2d 423 [2001] ).   Petitioner's claim of retaliation presented a question of credibility for the Hearing Officer to resolve (see Matter of Mahon v. Goord, 20 A.D.3d 837, 837, 798 N.Y.S.2d 799 [2005], appeal dismissed 5 N.Y.3d 879, 808 N.Y.S.2d 142, 842 N.E.2d 28 [2005] ).   Petitioner's remaining contentions, to the extent they are properly before us, have been considered and found to be without merit.

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