IN RE: Omar THORPE (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 certain prison disciplinary rules.

Correction officers observed a number of inmates engaged in a violent physical altercation in the recreation yard.   When the inmates ignored directives to stop, chemical agents were used to restore order.   Petitioner was identified as one of the inmates involved in the incident and, as a result, was charged in a misbehavior report with fighting, engaging in violent conduct, disturbing the order of the facility and refusing a direct order.   Following a tier III disciplinary hearing, he was found guilty of the charges.   The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

 Initially, to the extent that petitioner asserts that the testimony relied upon by the Hearing Officer was contradictory and inconsistent, he raises an issue of substantial evidence.   Upon reviewing the record, we find that the misbehavior report, related documentary evidence and the testimony of the correction personnel involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Peana v. Fischer, 54 A.D.3d 1126, 1126-1127, 864 N.Y.S.2d 577 [2008];  Matter of Wilson v. Dubray, 54 A.D.3d 1089, 1090, 866 N.Y.S.2d 367 [2008] ).   The testimony of petitioner and his inmate witnesses that petitioner did not participate in the melee presented a credibility issue for the Hearing Officer to resolve (see Matter of Peana v. Fischer, 54 A.D.3d at 1127, 864 N.Y.S.2d 577;  Matter of Dozier v. Selsky, 54 A.D.3d 1074, 1075, 864 N.Y.S.2d 188 [2008] ).   Moreover, we find no error in the Hearing Officer's denial of certain inmates, as well as a nurse, as witnesses inasmuch as their testimony would have been cumulative and redundant under the circumstances presented (see Matter of Brown v. Taylor, 62 A.D.3d 1230, 1231, 882 N.Y.S.2d 321 [2009];  Matter of Scott v. Fischer, 57 A.D.3d 1035, 1036, 868 N.Y.S.2d 816 [2008], lv. denied 12 N.Y.3d 705, 879 N.Y.S.2d 51, 906 N.E.2d 1085 [2009] ).   Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

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