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

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

Decided: September 23, 2004

Before:  MERCURE, J.P., CREW III, PETERS, ROSE and KANE, JJ. Donnell Shelton, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin 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 challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, assault on staff and disobeying a direct order.   According to the misbehavior report, petitioner was identified as one in a group of inmates who became agitated and began waving their arms culminating in an assault and attempted assault on various correction officers.   Orders by staff were ignored by the inmates until two shots were fired.   Contrary to petitioner's contention, the misbehavior report and testimony at the hearing, which identified petitioner as being a member of the group, provide substantial evidence to support the determination of guilt (see Matter of Johnson v. Sabourin, 290 A.D.2d 799, 736 N.Y.S.2d 498 [2002];  Matter of Daum v. Goord, 274 A.D.2d 715, 711 N.Y.S.2d 212 [2000] ).   Petitioner asserts that he was incorrectly found guilty of assault because the author of the misbehavior report testified that he did not see petitioner actually hit a correction officer.   The body of the misbehavior report specifically charges petitioner with attempt to assault a correction officer, which is a violation of the rule that prohibits both assaults and attempts to assault another person (see 7 NYCRR 270.2[B][1][ii];  Matter of Price v. Goord, 308 A.D.2d 625, 626, 764 N.Y.S.2d 226 [2003] ). Even if petitioner had raised his remaining contentions at the hearing or on administrative appeal thereby preserving them for our review (see Matter of Pulliam v. Waite, 8 A.D.3d 841, 778 N.Y.S.2d 323 [2004] ), we would find them to be without merit.

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

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