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IN RE: David RUSSELL (2005)

Supreme Court, Appellate Division, Third Department, New York.

IN RE: David RUSSELL, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

Decided: October 27, 2005

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. David Russell, Pine City, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondents.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a frisk, petitioner became disruptive and dumped the contents of a garbage can on the floor.   He refused a correction officer's directive to clean it up and, after being placed against a wall, struck the officer with a closed fist.   He was placed in mechanical restraints and then removed from the area.   As a result of this incident, petitioner was charged in a misbehavior report with assaulting staff, creating a disturbance, refusing a direct order and failing to comply with frisk and search procedures.   He was found guilty of these charges following a tier III disciplinary hearing.   The determination was upheld on administrative appeal, but the penalty was modified.   This CPLR article 78 proceeding ensued.

 The detailed misbehavior report provides substantial evidence supporting the determination of guilt (see Matter of Loper v. Greene, 19 A.D.3d 947, 948, 797 N.Y.S.2d 190 [2005];  Matter of Burr v. Goord, 284 A.D.2d 881, 882, 727 N.Y.S.2d 345 [2001] ).   Petitioner's claim that the report was written in retaliation for his filing a grievance against a correction officer presented a credibility issue for the Hearing Officer to resolve (see Matter of Loper v. Greene, supra at 948, 797 N.Y.S.2d 190;  Matter of Shell v. Superintendent of Oneida Correctional Facility, 18 A.D.3d 1044, 1044, 795 N.Y.S.2d 771 [2005] ).   Moreover, we find no merit to petitioner's claim that he was improperly denied the right to have two inmates testify at the hearing inasmuch as the record discloses that these inmates executed refusal forms setting forth the reasons they did not wish to testify (see Matter of Fletcher v. Goord, 16 A.D.3d 731, 733, 790 N.Y.S.2d 331 [2005];  Matter of Nimmons v. Goord, 7 A.D.3d 887, 888, 776 N.Y.S.2d 629 [2004] ).   Accordingly, we decline to disturb the determination.

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

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IN RE: David RUSSELL (2005)

Decided: October 27, 2005

Court: Supreme Court, Appellate Division, Third Department, New York.

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