IN RE: Angel MALDONADO

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

IN RE: Angel MALDONADO, Appellant, v. Donald SELSKY, as Director of Special Housing Unit, Inmate Disciplinary Program, Respondent.

Decided: January 21, 1999

Before:  MIKOLL, J.P., YESAWICH, Jr., PETERS, CARPINELLO and GRAFFEO, JJ. Angel Maldonado, Comstock, appellant in person. Eliot Spitzer, Attorney-General (Nancy A. Spiegel of counsel), Albany, for respondent.

Appeal from a judgment of the Supreme Court (Donohue, J.), entered June 11, 1998 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Following a physical altercation with another inmate, petitioner was charged with fighting and possession of a weapon in violation of certain prison disciplinary rules.   Petitioner pleaded guilty to fighting and, following a tier III disciplinary hearing, was found guilty of both charges.   On administrative appeal, the weapon charge was dismissed.   Petitioner commenced this CPLR article 78 proceeding contending that he was denied the right to receive and present relevant documentary evidence in his defense because he was denied a copy of the other inmate's misbehavior report without written reason.   Supreme Court dismissed the petition, prompting this appeal.   Even if it was error for Supreme Court to review the other inmate's misbehavior report (see, Matter of Hakeem v. Coombe, 233 A.D.2d 805, 806, 650 N.Y.S.2d 819;  Matter of Raqiyb v. Coughlin, 214 A.D.2d 788, 789, 624 N.Y.S.2d 667), we nevertheless affirm.   Any error in the Hearing Officer's denial of petitioner's request for the misbehavior report of the other inmate involved in the altercation is harmless (see, Matter of Moldanado v. Selsky, 254 A.D.2d 660, ----, 679 N.Y.S.2d 353, particularly where, as here, petitioner pleaded guilty to fighting.   In any event, petitioner's claim of justification presented a credibility issue for resolution by the Hearing Officer (see, id.).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.

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