IN RE: Lazaro BURT (1998)

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

While an inmate at Southport Correctional Facility in Chemung County, petitioner was found guilty of assaulting an inmate, engaging in an unhygienic act and damaging State property in violation of certain prison disciplinary rules.   Although not raised on his administrative appeal, petitioner contends that the determination of his guilt is not supported by substantial evidence.   We disagree.   The charges in the misbehavior report stemmed from an incident wherein feces were thrown at an inmate while he was in his cell, hitting the inmate and ruining his clothing and bed sheets.   The correction officer who authored the misbehavior report, but did not witness the incident, testified that, because the feces were on the front of the cell bars and the walls of the cell, it was his opinion that they could only have been thrown by someone standing outside of the cell.   The record established that petitioner was assigned as the food porter and was the only inmate in the gallery at the time of the incident.   Furthermore, testimony established that at the time of the incident, the victim identified petitioner as the perpetrator.   This evidence, together with the reasonable inferences to be drawn therefrom, are sufficiently relevant and probative to support the determination of petitioner's guilt (see, Matter of Redd v. Kuhlmann, 177 A.D.2d 803, 804, 576 N.Y.S.2d 418;  see also, Matter of Palacio v. State of New York Dept. of Correctional Servs., 182 A.D.2d 900, 582 N.Y.S.2d 42).   Petitioner's remaining contentions, to the extent that they are properly before this court, have been reviewed and found to be without merit.

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

MEMORANDUM DECISION.