IN RE: Raul RAMIREZ (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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule prohibiting assault on an inmate.   The misbehavior report related that on the afternoon of April 4, 1997, petitioner and another inmate were observed by a correction officer in the act of assaulting a third inmate.   After the correction officer broke up the fight, the victim was found to have suffered 10 puncture wounds which were apparently inflicted by a sharp object.   The suspected weapon was subsequently found in another inmate's cell but could not be directly tied to this assault.

 Petitioner challenges the determination on the ground that it was not supported by substantial evidence.   We disagree.   Included in the evidence presented at petitioner's disciplinary hearing was the misbehavior report and the eyewitness testimony of the correction officer who wrote it together with the confidential testimony of the victim.   This evidence was sufficient to constitute substantial evidence of petitioner's guilt (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 119, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  Matter of Feliciano v. Selsky, 239 A.D.2d 799, 658 N.Y.S.2d 147).   To the extent that the testimony of petitioner and that of the second inmate accused of perpetrating the assault was in conflict with the evidence presented against petitioner, this presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Rodriguez v. Coombe, 239 A.D.2d 854, 855, 657 N.Y.S.2d 839, lv. dismissed 91 N.Y.2d 907, 668 N.Y.S.2d 1001, 691 N.E.2d 1025).

 We reject petitioner's contention that the Hearing Officer erred by permitting the victim to give confidential testimony.   Pursuant to 7 NYCRR 254.5(b), witnesses shall be allowed to testify outside the accused inmate's presence if the Hearing Officer deems it necessary to safeguard “institutional safety or correctional goals”, so long as the accused inmate is informed by the Hearing Officer that “confidential evidence will be considered and * * * a reason why the evidence cannot be disclosed” (Matter of Pinargote v. Berry, 147 A.D.2d 746, 747, 537 N.Y.S.2d 339, lv. denied 74 N.Y.2d 606, 543 N.Y.S.2d 399, 541 N.E.2d 428).   These conditions were met here when the Hearing Officer, based on the confirmed history of conflict between petitioner and the victim, notified petitioner that the victim would not testify in his presence in order to avoid the risk of renewed violence (see, Matter of Abdur-Raheem v. Mann, supra, at 121-122, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  Matter of Feliciano v. Selsky, supra, at 799, 658 N.Y.S.2d 147).

Petitioner's remaining contentions have been reviewed and found to be without merit or unpreserved for our review.

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

PETERS, J.

MIKOLL, J.P., CREW III, YESAWICH JR. and GRAFFEO, JJ., concur.