IN RE: Richard RIVERA (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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty at the conclusion of a tier III disciplinary hearing of extortion and making threats.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm.   The determination of guilt is supported by substantial evidence in the form of the misbehavior report and testimony adduced at the hearing (see Matter of Fontaine v. Superintendent of Southport Correctional Facility, 35 A.D.3d 1113, 1113-1114, 825 N.Y.S.2d 595 [2006], appeal dismissed 8 N.Y.3d 943, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007] ).   Although the correction officer who authored the misbehavior report did not actually witness the incident in question, he investigated the matter and was able to ascertain the underlying facts (see Matter of Mendez v. Goord, 21 A.D.3d 1191, 1192, 800 N.Y.S.2d 858 [2005] ).   Petitioner's denial that the incident occurred created a credibility issue for resolution by the Hearing Officer (see Matter of Ramirez v. Goord, 32 A.D.3d 601, 601, 818 N.Y.S.2d 867 [2006] ).   Finally, we reject petitioner's contention that he was improperly denied the right to call a character witness (see Matter of Krivoi v. Selsky, 284 A.D.2d 677, 678, 728 N.Y.S.2d 209 [2001] ).

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