IN RE: Michael KILLINGS (1997)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in an inmate misbehavior report with violating prison disciplinary rules prohibiting rioting, assault or attempted assault on staff members and disobeying a direct order.   After a tier III disciplinary hearing, at which petitioner pleaded guilty to the charge of rioting, petitioner was found guilty of the remaining two charges and was given a penalty of 60 months in the special housing unit and loss of telephone privileges, as well as six months' loss of good behavior time.   Thereafter, the penalty was reduced to 40 months in the special housing unit and loss of telephone privileges and six months' loss of good behavior time.

 Given the detailed misbehavior report signed by two correction officers who witnessed the events and petitioner's testimony regarding his involvement in the riot, we find that the determination finding petitioner guilty of attempting to assault a staff member and disobeying a direct order was supported by substantial evidence (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Reid v. Coughlin, 220 A.D.2d 910, 649 N.Y.S.2d 339).   The conflicting testimony offered by petitioner merely presented a credibility determination for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, supra ).   Inasmuch as petitioner never requested a copy of the unusual incident report, we reject the contention that the failure to produce it constituted a violation of his due process rights (see, Matter of Jacques v. Coughlin, 211 A.D.2d 929, 621 N.Y.S.2d 954).   Finally, we find that the penalty is not so disproportionate to the offenses as to be shocking to one's sense of fairness (see, Matter of Collazo v. Coombe, 235 A.D.2d 654, 656, 653 N.Y.S.2d 145, 147;  Matter of Williams v. Coughlin, 190 A.D.2d 883, 886, 593 N.Y.S.2d 570, lv denied 82 N.Y.2d 651, 601 N.Y.S.2d 581, 619 N.E.2d 659).   We find petitioner's remaining contentions to be unpersuasive.

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

MEMORANDUM DECISION.