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

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

Decided: August 07, 2008

Before:  SPAIN, J.P., CARPINELLO, MALONE JR., KAVANAGH and STEIN, JJ. James Adams, Dannemora, petitioner pro se. Andrew M. Cuomo, 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 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 observed lunging at another inmate and stabbing him in the neck area.   The weapon used by petitioner was recovered after he dropped it to the floor and the weapon's sheath was found in his pants pocket.   Petitioner was thereafter charged in a misbehavior report with assault, possession of a weapon and fighting.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of assault and possession of a weapon and not guilty of fighting.   Following an unsuccessful administrative appeal, petitioner initiated this CPLR article 78 proceeding seeking annulment.

We confirm.   To the extent that petitioner's allegations can be construed as forming a challenge to the determination of guilt on the ground that the evidence in support thereof was insufficient, we find that the detailed misbehavior report, together with the corroborating hearing testimony from the correction officer who witnessed the incident and authored the report, provide substantial evidence to uphold the determination (see Matter of McCloud v. Selsky, 45 A.D.3d 1127, 1128, 844 N.Y.S.2d 917 [2007] ).   Petitioner's claims that the misbehavior report and supporting documentation were defective and that he was denied the right to present witness testimony have been examined and found to be unavailing.

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


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