IN RE: Kalongi MAHON

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

IN RE: Kalongi MAHON, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: July 28, 2005

Before:  MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. Kalongi Mahon, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Andrea Oser 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a pat frisk, a correction officer discovered a packet of paper in petitioner's pocket and set it aside.   When petitioner lunged for the packet, he knocked the officer to the ground and a struggle ensued.   With the assistance of other correction officers, petitioner was subdued before ingesting the packet.   Thereafter, he was charged in two misbehavior reports with assaulting staff, engaging in violent conduct, refusing a direct order and violating search and frisk procedures.   At the subsequent tier III disciplinary hearing, the charges contained in one of the reports were dismissed as redundant.   Petitioner pleaded guilty to refusing a direct order and violating search and frisk procedures, and was ultimately found guilty of all remaining charges at the conclusion of the hearing.   The determination of guilt was upheld on administrative appeal, but the penalty was modified.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of two of the officers involved in the incident, provide substantial evidence supporting the determination of guilt with respect to the charge of assaulting staff (see Matter of Ratliff v. Goord, 13 A.D.3d 772, 772-773, 785 N.Y.S.2d 614 [2004], lv. denied 4 N.Y.3d 708, 796 N.Y.S.2d 581, 829 N.E.2d 674 [2005];  Matter of Rosario v. Goord, 12 A.D.3d 758, 759, 783 N.Y.S.2d 726 [2004] ).   Petitioner's claim of retaliation presented a question of credibility for the Hearing Officer to resolve (see Matter of Brown v. Goord, 11 A.D.3d 857, 858, 783 N.Y.S.2d 151 [2004] ).   His claims of impropriety concerning the Hearing Officer who presided over the hearing were not raised at the hearing and are not preserved for our review (see Matter of Lopez v. Goord, 14 A.D.3d 771, 786 N.Y.S.2d 852 [2005] ), and his remaining claims lack merit.

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

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