IN RE: Matthew CONEEN

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

IN RE: Matthew CONEEN, Petitioner, v. Donald D. SELSKY, as Director of the Special Housing Unit, New York State Department of Correctional Services, Respondent.

Decided: January 29, 1998

Before CARDONA, P.J., and MIKOLL, WHITE, YESAWICH and CARPINELLO, JJ. Matthew Coneen, Staten Island, in person. Dennis C. Vacco, Attorney General (Marcus J. Mastracco, of counsel), Albany, 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 a prison disciplinary rule.

 Petitioner was found guilty of violating the prison disciplinary rule that prohibits threatening a staff member.   Included in the evidence presented at petitioner's disciplinary hearing was the misbehavior report written by a correction officer who related that petitioner had become incensed and verbally abusive when the officer required him to pass through a metal detector.   A second correction officer who had witnessed this confrontation testified that he subsequently overheard petitioner stating that he would “kill” the correction officer who had directed him to pass through the metal detector.   A facility maintenance worker also testified, giving an account of the incident that was consistent with that of the correction officers.   Such proof was sufficient to constitute substantial evidence of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Lee v. McCoy, 233 A.D.2d 633, 649 N.Y.S.2d 842).   To the extent that petitioner's version of the precipitating incident was in conflict with the evidence presented at trial, this presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Perez v. Wilmot, 67 N.Y.2d 615, 617, 499 N.Y.S.2d 659, 490 N.E.2d 526).   We have examined petitioner's remaining contentions and find them to be either without merit or unpreserved for our review.

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

MEMORANDUM DECISION.

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