IN RE: George PELLOT (2009)

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 a prison disciplinary rule.

Following an incident in which petitioner brushed up against a female cook in an inappropriate manner while she was working behind the serving line, petitioner was charged in a misbehavior report with assaulting staff, forcibly touching an employee and physically interfering with an employee.   He was found guilty of interfering with an employee following a tier III disciplinary hearing.   The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, the detailed misbehavior report, authored by the employee whom petitioner touched, and related documentation constitute substantial evidence supporting the determination of guilt (see Matter of Kimble v. Fischer, 56 A.D.3d 879, 880, 866 N.Y.S.2d 437 [2008];  Matter of Tayler v. Selsky, 49 A.D.3d 1060, 1060, 853 N.Y.S.2d 441 [2008] ).   The contrary testimony of petitioner and that of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v. Selsky, 57 A.D.3d 1136, 1137, 871 N.Y.S.2d 426 [2008], appeal dismissed 12 N.Y.3d 776, 879 N.Y.S.2d 33, 906 N.E.2d 1066 [2009];  Matter of Perez v. Dubray, 55 A.D.3d 1119, 1119, 865 N.Y.S.2d 765 [2008] ).   Petitioner's claim that the Hearing Officer improperly failed to inquire whether petitioner understood the charges or needed a translator has not been preserved for our review (see Matter of Quinones v. Fischer, 55 A.D.3d 1200, 1200-1201, 867 N.Y.S.2d 226 [2008];  Matter of Britt v. Fischer, 54 A.D.3d 1087, 1087, 864 N.Y.S.2d 571 [2008] ).   Therefore, the determination must be confirmed.

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