IN RE: Harold SHELL Jr. (2005)

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 Superintendent of Oneida Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's property, petitioner became loud and boisterous when certain items were confiscated.   Although the correction officer who issued the misbehavior report attempted to explain to petitioner the reason the items were being confiscated, petitioner became more disruptive, attracting the attention of other inmates in the area.   When petitioner failed to abide by a direct order to stop his disruptive behavior, he was sent back to his housing unit in order to maintain the safety and security of the area.   A misbehavior report was issued and, following a disciplinary hearing and subsequent administrative appeal, petitioner ultimately was found guilty of violating the prison disciplinary rules that prohibit causing a disturbance, refusing a direct order and interference with an employee.   Petitioner thereafter commenced this CPLR article 78 proceeding challenge the determination.

Contrary to petitioner's contention, the misbehavior report provides substantial evidence to support the determination of guilt (see Matter of Wigfall v. Goord, 16 A.D.3d 791, 790 N.Y.S.2d 768 [2005];  Matter of Ragin v. Goord, 1 A.D.3d 842, 843, 767 N.Y.S.2d 298 [2003] ).   To the extent that petitioner offered a differing explanation of the incident and presented a defense of retaliation, this created a credibility issue for the Hearing Officer to resolve (see Matter of Hamilton v. Selsky, 13 A.D.3d 844, 785 N.Y.S.2d 811 [2004];  Matter of Perkins v. Goord, 290 A.D.2d 700, 701, 736 N.Y.S.2d 462 [2002] ).   Finally, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Edwards v. Goord, 11 A.D.3d 832, 833, 783 N.Y.S.2d 317 [2004];  Matter of White v. Selsky, 3 A.D.3d 762, 763, 770 N.Y.S.2d 811 [2004] ).   Petitioner's remaining contentions are either unpreserved for our review or have been determined to be without merit.

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