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

Matter of Jose DAVILLA, Petitioner, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

Decided: December 31, 1998

Present:  PINE, J.P., WISNER, PIGOTT, Jr., CALLAHAN and FALLON, JJ. Norman P. Effman by Edward Chassin, Attica, for Appellant. Peter Schiff, for Respondent.

 The determination is supported by substantial evidence, i.e., the written misbehavior report, the testimony of the investigating correction officer and the testimony of an inmate positively identifying petitioner as part of a group that assaulted two inmates (see generally, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   The Hearing Officer was free to reject petitioner's testimony and the testimony of another inmate witness called by petitioner (see, Matter of Fereira v. Coombe, 239 A.D.2d 905, 906, 659 N.Y.S.2d 620).   Upon our review of the record, we conclude that there is no merit to petitioner's contention that the Hearing Officer failed to act in a fair and impartial manner (see, Matter of Hooper v. Goord, 247 A.D.2d 884, 884-885, 668 N.Y.S.2d 800).

Determination unanimously confirmed without costs and petition dismissed.