IN RE: Clarence GOURDINE (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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules which prohibit fighting, assaults on inmates and possession of a weapon.   The misbehavior report relates that petitioner and another inmate were seen exchanging punches and were ordered to stop.   Petitioner complied, but then ran up a set of stairs to a landing, where he complied with another order to place his hands on the wall.   While being handcuffed, blood was noticed on petitioner's hand and a subsequent search of the area where petitioner was restrained uncovered a bloody, bent can lid in the trash.   The victim's injuries were consistent with the found weapon.   Following a tier III disciplinary hearing at which petitioner pleaded guilty to the charge of fighting, petitioner was found guilty of all charges.   Petitioner commenced this CPLR article 78 proceeding after an unsuccessful administrative appeal.

Contrary to petitioner's contention, the fact that neither the assault nor petitioner's possession of the weapon was witnessed by the author of the misbehavior report does not require annulment of the determination.   The misbehavior report, testimony at the hearing and supporting documents, together with the circumstantial evidence and reasonable inferences to be drawn therefrom, provide substantial evidence to support the determination of guilt (see Matter of Carter v. Goord, 8 A.D.3d 771, 778 N.Y.S.2d 234 [2004];  Matter of Hernandez v. Selsky, 308 A.D.2d 671, 764 N.Y.S.2d 663 [2003];  Matter of Caraway v. Herbert, 285 A.D.2d 778, 726 N.Y.S.2d 825 [2001] ).   Accordingly, the determination will not be disturbed.

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