IN RE: Jose RIVERA (1998)

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 attempted assault on staff, making threats and being out of place in violation of various prison disciplinary rules.   The misbehavior report indicates that petitioner lunged at a correction officer with his hand raised and yelled “quit messing with me woman” after the correction officer questioned his presence in the hallway.   The misbehavior report, together with the corroborating testimony presented at the disciplinary hearing, provide substantial evidence to support the determination of petitioner's guilt (see, Matter of Mays v. Goord, 243 A.D.2d 882, 663 N.Y.S.2d 322).   Although petitioner contends that the correction officer grabbed him by the throat rather than by the wrist when restraining him, this merely created a credibility issue which the Hearing Officer was free to resolve against petitioner (see, Matter of Heath v. Selsky, 245 A.D.2d 587, 664 N.Y.S.2d 883).   In any event, even if true, the manner in which the correction officer restrained petitioner does not negate the determination of guilt.   Petitioner's remaining contentions, including his claims of Hearing Officer bias, ineffective employee assistance and that he was denied the opportunity to prepare a defense, even if preserved for our review, have been reviewed and found to be without merit.

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

MEMORANDUM DECISION.