IN RE: Raphael THOMPSON

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

IN RE: Raphael THOMPSON, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: September 21, 2006

Before:  CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ. Raphael Thompson, Moravia, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

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 charged in a misbehavior report with assault on an inmate, violent conduct, weapon possession and unauthorized organizational activity after an investigation revealed that he attempted to stab another inmate in a gang-related incident.   Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty was imposed.   The determination was thereafter affirmed on administrative appeal, and this CPLR article 78 proceeding by petitioner ensued.

Inasmuch as substantial evidence supports the determination of guilt, we confirm (see Matter of Hines v. Goord, 29 A.D.3d 1204, 1205, 814 N.Y.S.2d 807 [2006];  Matter of Shicon v. Goord, 27 A.D.3d 811, 811-812, 811 N.Y.S.2d 165 [2006] ).   Despite petitioner's claims that he was not at the scene of the incident and that the alleged weapon was never found, the misbehavior report and testimony of the authoring correction officer provide a detailed account of petitioner's attempt to stab the inmate with “an ice pick like weapon.”   In addition, the officer's testimony that the incident stemmed from the inmate's “problems with Bloods,” a gang with which petitioner was affiliated, as well as the inmate's corroborative testimony identifying petitioner as the perpetrator, further support the determination.   Petitioner's exculpatory statements to the contrary simply presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).   Finally, although the misbehavior report incorrectly states the date of the incident, both the officer and the inmate confirmed the correct date at the hearing (see Matter of Jenkins v. Goord, 30 A.D.3d 719, 720, 815 N.Y.S.2d 491 [2006] ).

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

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