IN RE: Esteban JIMENEZ (1997)

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

 Petitioner was found guilty of violating the prison disciplinary rules which prohibit violent conduct, fighting, possession of contraband that may be classified as a weapon, damaging State property and unauthorized assembly.   The charges followed a melee at Bare Hill Correctional Facility in Franklin County involving 40 to 50 inmates during which petitioner was observed swinging a broken racquetball racket at and fighting with other inmates.   We reject petitioner's contention that he was denied due process or his administrative rights because the inmate he allegedly struck with the racket was not called to testify at the hearing (see, 7 NYCRR 254.5).   The record adequately establishes that this inmate could not be identified.   Inasmuch as the testimony of the two correction officers who were eyewitnesses to the incident in question fully corroborated the allegations in the misbehavior report, we find that substantial evidence supports the finding of guilt as to each charge and we, accordingly, confirm (see, Matter of Chappelle v. Coombe, 234 A.D.2d 779, 652 N.Y.S.2d 107).

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

MEMORANDUM DECISION.