IN RE: Jose DE LA ROSA

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

IN RE: Jose DE LA ROSA, Petitioner, v. Leonard PORTUONDO, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.

Decided: February 26, 1998

Before CARDONA, P.J., and MIKOLL, MERCURE, YESAWICH and CARPINELLO, JJ. Jose De La Rosa, Wallkill, in person. Dennis C. Vacco, Attorney General (Wayne L. Benjamin, of counsel), Albany, for respondents.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner, a prison inmate, was found guilty of violating a prison disciplinary rule prohibiting inmates from disturbing the order of the facility.   Evidence presented at the disciplinary hearing included the misbehavior report written by a correction officer who had observed petitioner, along with several other inmates, crowding around and verbally harassing a female correction officer who was new to the facility.   When the inmates refused to desist, additional correction officers were needed to restore order.   The misbehavior report was consistent with the testimony of the correction officer who was the target of the charged misconduct.   On this record, we conclude that substantial evidence supports the determination 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 McCoy v. Leonardo, 175 A.D.2d 358, 359, 572 N.Y.S.2d 436).   To the extent that petitioner's testimony and that of his inmate witnesses was in conflict with the evidence presented against him, 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, including his allegation of Hearing Officer bias, and find them to be either unpreserved for our review or without merit.

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

MEMORANDUM DECISION.

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