IN RE: Shamel HOWARD

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

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

Decided: July 26, 2007

Before:  MERCURE, J.P., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Shamel Howard, Malone, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

 Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of assault on an inmate and possession of a weapon, violations of prison disciplinary rules.   We confirm.   The misbehavior report and the testimony of the inmate victim provide substantial evidence supporting the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990];  Matter of Williams v. Goord, 259 A.D.2d 793, 794, 687 N.Y.S.2d 190 [1999] ).   Petitioner's exculpatory statements and the testimony of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).   Petitioner's argument that he was denied access to a surveillance videotape is without merit as the record establishes that no recording existed (see Matter of Cornwall v. Goord, 287 A.D.2d 911, 911-912, 731 N.Y.S.2d 561 [2001] ).   Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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

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