IN RE: Aaron UMBER (2003)

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

While on sick call, petitioner reported that he had been raped by his cellmate on more than one occasion.   An investigation ensued which revealed that petitioner's claim was unfounded and that the sexual contact was consensual.   As a result, petitioner was charged in a misbehavior report with violating prison disciplinary rules prohibiting inmates from engaging in sexual acts, having physical contact, participating in the unauthorized exchange of personal property and providing misleading or false information.   At a subsequent tier III disciplinary hearing, which was ordered after a prior hearing was administratively reversed, petitioner pleaded guilty to participating in the unauthorized exchange of personal property and was found guilty of all other charges.   This determination was affirmed upon administrative appeal.   Petitioner then commenced the instant CPLR article 78 proceeding challenging the determination.

We confirm.   Although petitioner challenges the sufficiency of the evidence relied upon by the Hearing Officer, the misbehavior report and the testimony of its author, together with the written statements of those involved in the investigation of the incident, provide substantial evidence supporting the determination (see Matter of Bankston v. Selsky, 301 A.D.2d 984, 754 N.Y.S.2d 442;  Matter of Torres v. Goord, 267 A.D.2d 732, 733, 700 N.Y.S.2d 280;  Matter of Rodriguez v. Goord, 261 A.D.2d 740, 741, 691 N.Y.S.2d 585, lv. denied 93 N.Y.2d 818, 697 N.Y.S.2d 565, 719 N.E.2d 926).   The author of the misbehavior report stated that petitioner's cellmate confirmed that sexual contact had occurred, but indicated that it was consensual, with petitioner having initiated it.   He further testified that, based upon interviews with staff and other individuals, it was known throughout the facility that petitioner and his cellmate were involved in a homosexual relationship.   He further stated that petitioner's complaint appeared to be part of a scheme to bring a lawsuit against the state.   Although petitioner maintained that he was forcibly raped and denied that his complaint was in any way related to the lawsuit he commenced against the state, this testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Lopez v. Selsky, 300 A.D.2d 975, 750 N.Y.S.2d 906;  Matter of Edwards v. Goord, 298 A.D.2d 793, 794, 749 N.Y.S.2d 315).

We have considered petitioner's remaining arguments and find them meritless.

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

MERCURE, J.

CARDONA, P.J., PETERS, CARPINELLO and ROSE, JJ., CONCUR.