IN RE: Hector GONZALEZ (1998)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington 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 of violating the prison disciplinary rules that prohibit inmates from conspiring or taking any action which is intended to take over any area of the correctional facility and engaging in conduct which disturbs the order of the correctional facility.   Evidence presented at the disciplinary hearing included the misbehavior report written by a correction officer who observed petitioner instructing other inmates in Spanish and with hand gestures how to break through and crawl under a fence during a disturbance involving over 300 inmates in the east yard of the facility.   Notwithstanding the correction officer's testimony that he does not understand Spanish, the misbehavior report describing petitioner's actions together with the corroborating testimony presented at the hearing provided substantial evidence to support the determination of petitioner's guilt on both charges (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Calligros v. Great Meadow Correctional Facility, 246 A.D.2d 700, 666 N.Y.S.2d 520).   To the extent that petitioner's testimony conflicted with the misbehavior report and the correction officer's testimony, this created a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811, 669 N.Y.S.2d 403, 404).   Claimant's remaining contentions, including the lack of adequate notice of the charges, that he was not permitted to prepare a defense and that the Hearing Officer was biased, have been reviewed and found to be without merit.

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

MEMORANDUM DECISION.