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

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

Decided: April 24, 2008

Before:  SPAIN, J.P., CARPINELLO, ROSE, KAVANAGH and STEIN, JJ. Darren Williams, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order, assaulting an officer, engaging in violent conduct and creating a disturbance.   A tier III disciplinary hearing was conducted, at the conclusion of which petitioner was found guilty of all charges.   That determination was administratively affirmed with a modified penalty and this CPLR article 78 proceeding seeking annulment ensued.

 We confirm.   To the extent that the petition can be construed as raising a substantial evidence question, we find that the misbehavior report, related documentation and hearing testimony satisfy that standard (see Matter of Gonzalez v. Goord, 44 A.D.3d 1180, 1180, 843 N.Y.S.2d 736 [2007], lv. denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008] ).   Petitioner's denial of the charges created a credibility issue for resolution by the Hearing Officer (see Matter of Wesolowski v. Donahue, 45 A.D.3d 1224, 1224, 845 N.Y.S.2d 764 [2007] ), as did his claim that the misbehavior report was fabricated and retaliatory in nature (see Matter of Ryan v. Goord, 12 A.D.3d 799, 799, 784 N.Y.S.2d 254 [2004] ).   As for petitioner's assertion that the Hearing Officer was biased, it is neither substantiated in the record nor is there any indication that the determination at hand flowed from any purported bias (see Matter of McKinley v. Goord, 40 A.D.3d 1280, 1280, 836 N.Y.S.2d 349 [2007], lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 536, 875 N.E.2d 29 [2007] ). Petitioner's remaining contentions, including his claims that he was denied the right to present witness testimony and deprived of adequate employee assistance, have been examined and found to be unavailing.

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

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