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

IN RE: Kelvin HAYWOOD, Petitioner, v. Glenn GOORD, etc., et al., Respondents.

Decided: September 21, 1998

Before BRACKEN, J.P., THOMPSON, PIZZUTO and ALTMAN, JJ. Kelvin Haywood, Beacon, pro se. Dennis C. Vacco, Attorney General, New York City (Thomas D. Hughes and Thomas B. Litsky of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of Fishkill Correctional Facility dated August 4, 1997, which affirmed a determination of a Hearing Officer dated August 1, 1997, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating institutional rules and imposing a penalty.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

Contrary to the petitioner's contention, the misbehavior report provided substantial evidence to support the determination finding him guilty of creating a disturbance, refusing a direct order, and making threats (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Perez v. Wilmot, 67 N.Y.2d 615, 499 N.Y.S.2d 659, 490 N.E.2d 526;  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332, 485 N.E.2d 997;  Matter of Billups v. Artuz, 228 A.D.2d 587, 644 N.Y.S.2d 635).   To the extent that the petitioner and the inmate witnesses disputed the Corrections Officer's statements in his report, this presented an issue of credibility, which was in the Hearing Officer's discretion to resolve (see, Matter of Perez v. Wilmot, supra, at 617, 499 N.Y.S.2d 659, 490 N.E.2d 526;  Matter of Vargas v. Strack, 220 A.D.2d 675, 632 N.Y.S.2d 973).

The petitioner's remaining contentions are without merit.


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