IN RE: Giovanni WHITE

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

IN RE: Giovanni WHITE, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: July 21, 2005

Before:  CARDONA, P.J., MERCURE, PETERS, MUGGLIN and KANE, JJ. Giovanni White, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

While being escorted from a prison dormitory, petitioner took a swing at an approaching correction officer.   When the escort officer attempted to restrain petitioner, he ignored the officer's orders to stop struggling and resisted a pat frisk.   With the assistance of the correction officer who was the target of the attack, the escort officer was finally able to place mechanical restraints on petitioner.   He was thereafter charged in two misbehavior reports with assaulting staff, refusing a direct order and failing to comply with frisk and search procedures.   Following a tier III disciplinary hearing, he was found guilty of all charges, and this CPLR article 78 proceeding eventually ensued.

We confirm.   The misbehavior report, together with the testimony of the correction officers present during the incident, provide substantial evidence supporting the determination of guilt (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 Perez v. Goord, 6 A.D.3d 774, 774-775, 773 N.Y.S.2d 625 [2004] ).   Petitioner's testimony that it was he who was assaulted when he was removed from his cell presented a credibility issue for the Hearing Officer to resolve (see Matter of Ratliff v. Goord, supra at 773, 785 N.Y.S.2d 614;  Matter of Perez v. Goord, supra at 775, 773 N.Y.S.2d 625).   To the extent they are decipherable, petitioner's remaining claims either concern matters outside the present record or are without merit.

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

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