IN RE: Clarence EVANS

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

IN RE: Clarence EVANS, Petitioner, v. Donald SELSKY, as Special Housing Unit Director, Respondent.

Decided: December 28, 2000

Before:  CARDONA, P.J., PETERS, SPAIN, MUGGLIN and ROSE, JJ. Clarence Evans, Pine City, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.

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

 Petitioner challenges a determination of the Commissioner of Correctional Services which found him guilty of violating the prison disciplinary rules which prohibit refusing a direct order, assaulting staff, creating a disturbance, interfering with an employee, engaging in an unhygienic act and engaging in violent conduct.   The detailed misbehavior report relates that, in an attempt to remove petitioner from his cell, he failed to obey an order to put his hands through the cell hatch in order to be handcuffed and threw a cup of urine at four correction officers.   The misbehavior report, together with the corroborating testimony of the correction officers who were the subject of the assault, pictures of their clothing and videotape evidence, provide substantial evidence of petitioner's guilt (see, Matter of Bonez v. Clark, 275 A.D.2d 853, 713 N.Y.S.2d 235).

 Contrary to petitioner's assertion, the Hearing Officer could reasonably rely on the correction officers' testimony that the liquid that petitioner threw smelled like urine (see, Matter of Jenkins v. Coombe, 240 A.D.2d 825, 658 N.Y.S.2d 539).   Furthermore, any inconsistencies in the evidence or testimony presented a credibility issue for the Hearing Officer to resolve (see, Matter of Rossi v. Portuondo, 277 A.D.2d 615, 716 N.Y.S.2d 116).   We also reject petitioner's contention that he was denied the right to call an inmate witness.   Although the Hearing Officer did not personally interview the inmate witness, the testimony of the correction officer who spoke to the inmate twice was sufficient to evaluate the authenticity of the inmate's refusal to testify or sign the refusal to testify form (see, Matter of Hodges v. Murphy, 246 A.D.2d 701, 667 N.Y.S.2d 515).

Petitioner's remaining contentions, including his claim of Hearing Officer bias and inadequate employee assistance, have bene reviewed and found to be without merit.

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

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