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

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

Decided: November 30, 2006

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and CARPINELLO, JJ. Eric Thomas, Stormville, 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 Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was observed by a correction officer striking another inmate and ignored the officer's directive to stop.   The altercation ended after other correction officers arrived on the scene where one of them discovered a sharpened piece of metal covered with blood.   Petitioner was charged in a misbehavior report with fighting, assaulting an inmate, creating a disturbance, refusing a direct order and possessing a weapon.   He was found guilty of all charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

The misbehavior report, together with the testimony of its author and the unusual incident report, provide substantial evidence supporting the determination of guilt (see Matter of Hernandez v. Selsky, 9 A.D.3d 662, 663, 779 N.Y.S.2d 678 [2004], appeal dismissed, lv. denied 3 N.Y.3d 698, 785 N.Y.S.2d 17, 818 N.E.2d 659 [2004] ).   The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Bolden v. Selsky, 305 A.D.2d 749, 750, 759 N.Y.S.2d 565 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ).   Therefore, we find no reason to disturb the determination at issue.

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

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