IN RE: Samuel McNEAR

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

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

Decided: January 26, 2006

Before:  CARDONA, P.J., CREW III, CARPINELLO, MUGGLIN and KANE, JJ. Samuel McNear, Dannemora, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin 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.

A correction officer observed petitioner approach another inmate and exchange punches with him.   Petitioner disregarded several direct orders from the correction officer to stop fighting, even when the other inmate attempted to comply with the orders.   As a result of the incident, petitioner was charged in a misbehavior report with fighting and refusing a direct order.   At the ensuing tier III disciplinary hearing, petitioner requested no witnesses and offered no defense.   Petitioner was found guilty of both charges and, as modified on administrative appeal, a penalty of, among other things, six months confinement and loss of good time was imposed.

Contrary to petitioner's contention, the misbehavior report written by the correction officer who witnessed the incident is sufficient, by itself, to constitute 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 Encarnacion v. Goord, 19 A.D.3d 906, 797 N.Y.S.2d 178 [2005] ).   We have reviewed petitioner's remaining contentions, including his challenge to the penalty imposed and tier classification of the charges, and find them to be without merit.

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

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