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

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

Decided: November 30, 2006

Before:  MERCURE, J.P., CREW III, SPAIN, CARPINELLO and LAHTINEN, JJ. Dave Roye, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

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

Petitioner was charged in a misbehavior report with fighting, creating a disturbance, possessing a weapon and refusing a direct order.   He was found guilty of the charges following a tier III disciplinary hearing, and the determination was upheld on administrative appeal with a modified penalty.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report and the testimony of its author, who witnessed the incident, provide substantial evidence to support the determination of guilt (see Matter of Griffith v. Selsky, 32 A.D.3d 595, 596, 818 N.Y.S.2d 871 [2006];  Matter of Price v. Goord, 29 A.D.3d 1203, 1204, 814 N.Y.S.2d 409 [2006] ).   To the extent that contrary testimony was presented, resolution of credibility issues is left to the Hearing Officer's discretion (see Matter of Cunningham v. Selsky, 29 A.D.3d 1254, 1255, 815 N.Y.S.2d 346 [2006];  Matter of Price v. Goord, supra at 1204, 814 N.Y.S.2d 409). Finally, petitioner was not denied adequate assistance as the specific documents that he requested did not exist (see Matter of Hynes v. Goord, 30 A.D.3d 652, 653, 817 N.Y.S.2d 168 [2006] ).   Petitioner's remaining contentions, including his claim of hearing officer bias, have been reviewed and determined to be without merit.

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

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