IN RE: Frank BROWN (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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules which prohibit harassment and making threats.   The misbehavior report relates that in response to a correction officer informing petitioner that his cell shield was coming down, petitioner threw a cup filled with liquid at the correction officer and then threatened him.   The misbehavior report, authored by the correction officer involved in the incident, is sufficient, by itself, to constitute substantial evidence to support the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990];  Matter of Barnes v. Goord, 279 A.D.2d 685, 718 N.Y.S.2d 890 [2001] ).   Contrary to petitioner's contention, the record establishes that he presented testimony in support of his defense that the misbehavior report was issued in retaliation for the numerous grievances and complaints he had filed against the correction facility staff.   Nevertheless, petitioner's retaliation defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Carrington v. Goord, 20 A.D.3d 835, 798 N.Y.S.2d 700 [2005];  Matter of Becker v. Goord, 13 A.D.3d 947, 948, 787 N.Y.S.2d 441 [2004] ).   Finally, the record fails to support petitioner's contention that he was denied a fair and impartial hearing due to alleged hearing officer bias or a predetermination of petitioner's guilt (see Matter of Amaker v. Senkowski, 278 A.D.2d 622, 717 N.Y.S.2d 712 [2000], lv. denied 96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206 [2001] ).

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