IN RE: George ALEJANDRO

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

IN RE: George ALEJANDRO, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: December 21, 2000

Before:  CREW III, J.P., CARPINELLO, MUGGLIN and ROSE, JJ. George Alejandro, Dannemora, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.

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

 There is no merit in petitioner's challenge to the evidentiary basis for the determination which found him guilty of assault, violent conduct and violating visiting room procedures for having punched his girlfriend in the face while she was visiting him.   The detailed misbehavior report alone provides the necessary substantial evidence to support the determination (see, Matter of Melluzzo v. Goord, 250 A.D.2d 893, 673 N.Y.S.2d 748, lv. denied 92 N.Y.2d 814, 681 N.Y.S.2d 475, 704 N.E.2d 228;  Matter of Colon v. Coughlin, 147 A.D.2d 802, 537 N.Y.S.2d 680).   Although there was no witness to the assault, attached to the misbehavior report were written internal facility memoranda describing petitioner's admission, the visitor's injury and the visitor's statement.   Petitioner's denial of the charges created a question of credibility for the Hearing Officer to resolve (see, e.g., Matter of Evans v. Rivera, 252 A.D.2d 706, 675 N.Y.S.2d 427) and, in the absence of any formal request for witnesses, the Hearing Officer had no obligation to call witnesses and present petitioner's case (see, Matter of Cowart v. Selsky, 260 A.D.2d 883, 689 N.Y.S.2d 535).   There is no support in the record for petitioner's claim of Hearing Officer bias and the penalty, as modified on petitioner's administrative appeal, which includes one year in the special housing unit and the loss of visitation for one year, is not so disproportionate to the offenses as to shock one's sense of fairness.

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

MEMORANDUM DECISION.

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