IN RE: Darryl PRIMO (1999)

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits assaulting other inmates.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of his guilt on procedural and substantial evidence grounds.   Supreme Court transferred the matter to this court and we confirm.

Initially, we reject petitioner's contention that the absence of a signature on his copy of the misbehavior report rendered it defective inasmuch as the correction officer who prepared and signed the original report sufficiently explained the missing signature at the disciplinary hearing (see, Matter of Ray v. Coughlin, 226 A.D.2d 846, 640 N.Y.S.2d 651).   Additionally, petitioner has failed to demonstrate how he was prejudiced by this technical error (see, Matter of Moley v. Selsky, 245 A.D.2d 588, 664 N.Y.S.2d 843).   Further, the copy of the misbehavior report provided to petitioner was sufficiently detailed to enable him to prepare a defense even in the absence of the names of other inmates involved in the incident (see, Matter of Couch v. Goord, 255 A.D.2d 720, 682 N.Y.S.2d 106;  Matter of S. v. Coughlin, 172 A.D.2d 937, 568 N.Y.S.2d 477, lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 644, 578 N.E.2d 442).

Finally, the misbehavior report and the testimony of the correction officer who had authored it and who had investigated the incident provide substantial evidence of petitioner's guilt, notwithstanding that the correction officer did not actually witness the assault (see, Matter of Bostic v. Coughlin, 216 A.D.2d 766, 628 N.Y.S.2d 448).   Although the victim subsequently denied that petitioner assaulted him, this merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Rodriguez v. Coombe, 239 A.D.2d 854, 657 N.Y.S.2d 839, lv. dismissed 91 N.Y.2d 907, 668 N.Y.S.2d 1001, 691 N.E.2d 1025).

Petitioner's remaining arguments, to the extent preserved for our review, are found to be lacking in merit.

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

CARPINELLO, J.

MERCURE, J.P., PETERS, SPAIN and GRAFFEO, JJ., concur.