IN RE: Alberto RIVERA

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

IN RE: Alberto RIVERA, Petitioner, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: December 24, 1997

Before CARDONA, P.J., and MIKOLL, MERCURE, PETERS and SPAIN, JJ. Alberto Rivera, Dannemora, 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 Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting creating a disturbance, harassment, refusing to obey a direct order and failing to produce an identification card.   He challenges this determination on the ground that it is not based upon substantial evidence.   We disagree.   Presented in evidence at the disciplinary hearing was the misbehavior report authored by the correctional facility's head cook.   He related that petitioner was standing in the facility's food service line when he became agitated after being denied fruit juice.   Petitioner shouted abusive and obscene comments and refused a correction officer's directive to produce his identification card.   We find that the misbehavior report, written by an eyewitness to the events in question, was sufficiently detailed and probative to constitute substantial evidence 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).   Petitioner's remaining contentions have been reviewed and found to be without merit or unpreserved for our review.

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

MEMORANDUM DECISION.

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