IN RE: Robert ROLON

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

IN RE: Robert ROLON, Petitioner, v. Glenn GOORD, as Commissioner of Correctional Services, Respondent.

Decided: November 29, 2001

Before:  MERCURE, J.P., PETERS, CARPINELLO, ROSE and LAHTINEN, JJ. David H. Savidge, Prisoners' Legal Services, Albany, for petitioner. Eliot Spitzer, Attorney-General (Patrick Barnett Mulligan of counsel), Albany, 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 a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits assault on another inmate.   The misbehavior report related that on the evening of December 1, 1999, an inmate was slashed across the face and head on a walkway near the correctional facility's indoor recreation area.   The misbehavior report also sets forth the victim's detailed description of his attacker as a young, light-skinned Hispanic male, approximately 5 feet, 10 inches in height, who worked in the mess hall.   When shown a photo array, the victim, without hesitation, positively identified petitioner as the individual who had assaulted him.

The misbehavior report, along with the victim's photo array identification of petitioner, the testimony of the authoring and investigating correction officer, and the testimony of the victim who again positively identified petitioner as his attacker, constitute substantial evidence to support the determination of petitioner's guilt (see, Matter of Esteves v. Coughlin, 157 A.D.2d 895, 549 N.Y.S.2d 890).   While petitioner and his inmate witness gave testimony in which they asserted that petitioner was innocent, this presented an issue of credibility which was resolved by the Hearing Officer (see, Matter of Caraway v. Herbert, 285 A.D.2d 778, 726 N.Y.S.2d 825;  Matter of Fereira v. Coombe, 239 A.D.2d 905, 906, 659 N.Y.S.2d 620).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

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