IN RE: Roger GAINES (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.

Petitioner was a participant in a fight involving multiple inmates and he disregarded a correction officer's directive to cease such conduct.   As a result, he was charged in a misbehavior report with fighting, refusing a direct order and creating a disturbance.   Following a tier III disciplinary hearing, he was found guilty of the charges, and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Roye v. Goord, 34 A.D.3d 1134, 824 N.Y.S.2d 491 [2006];  Matter of Lamage v. Goord, 285 A.D.2d 724, 724, 727 N.Y.S.2d 347 [2001], appeal dismissed 97 N.Y.2d 639, 735 N.Y.S.2d 495, 760 N.E.2d 1291 [2001] ).   The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Vassell v. Fischer, 48 A.D.3d 876, 849 N.Y.S.2d 915 [2008];  Matter of Griffin v. Goord, 43 A.D.3d 591, 591, 840 N.Y.S.2d 498 [2007] ).   Moreover, we find no merit to petitioner's assertion that he was improperly denied the misbehavior report of a fellow inmate who was also involved in the fight given that it was irrelevant to the charges against petitioner (see Matter of Jackson v. Goord, 18 A.D.3d 973, 974, 794 N.Y.S.2d 509 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 163, 840 N.E.2d 132 [2005] ).   Lastly, petitioner's challenge to the sufficiency of the misbehavior report is not preserved for our review given his failure to raise it at the hearing or in his administrative appeal (see Matter of Serrano v. Goord, 266 A.D.2d 661, 662, 698 N.Y.S.2d 742 [1999], lv. denied 94 N.Y.2d 762, 707 N.Y.S.2d 622, 729 N.E.2d 341 [2000] ).

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