IN RE: Sincere McKINLEY (2007)

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 a prison disciplinary rule.

Petitioner was charged in a misbehavior report with making threats after he commented that he wanted to punch a correction officer who was handing out mail.   He was found guilty of the charge following a tier III disciplinary hearing.   After the determination was affirmed on administrative appeal, this CPLR article 78 proceeding ensued.

 We confirm.   The detailed misbehavior report, prepared by the correction sergeant who heard the comment, provides substantial evidence supporting the determination of guilt (see Matter of Brown v. Goord, 24 A.D.3d 840, 840, 805 N.Y.S.2d 442 [2005];  cf. Matter of Allen v. Goord, 14 A.D.3d 961, 962, 788 N.Y.S.2d 511 [2005] ).   Petitioner's assertion that he did not intend to threaten the officer presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v. Goord, 25 A.D.3d 852, 852, 807 N.Y.S.2d 202 [2006] ).   His claim that the hearing was not completed in a timely manner is also unavailing.   Excluding the date that the misbehavior report was prepared (see Matter of Freeman v. Selsky, 270 A.D.2d 547, 548, 705 N.Y.S.2d 87 [2000];  Matter of Harris v. Goord, 268 A.D.2d 933, 934, 702 N.Y.S.2d 676 [2000] ), an extension to complete the hearing was obtained within 14 days (see 7 NYCRR 251-5.1[b] ) and the hearing was completed within the time provided for in the extension.   Under the circumstances presented, petitioner waived his right to claim that he was denied adequate employee assistance inasmuch as he declined the assistant's initial attempt to meet with him and did not avail himself of the Hearing Officer's offer to reassign the assistant or object at the hearing (see Matter of Starks v. Goord, 2 A.D.3d 1117, 1117, 768 N.Y.S.2d 689 [2003];  Matter of Kross v. Goord, 278 A.D.2d 637, 637, 719 N.Y.S.2d 137 [2000];  cf. Matter of Avincola v. Goord, 283 A.D.2d 748, 725 N.Y.S.2d 116 [2001] ).   Petitioner's remaining contentions are either unpreserved for our review or lacking in merit.

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