IN RE: Frank DEMEO

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IN RE: Frank DEMEO, Petitioner, v. DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Decided: June 20, 2013

Before: PETERS, P.J., LAHTINEN, STEIN and SPAIN, JJ. Frank Demeo, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with engaging in violent conduct, fighting and creating a disturbance. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Lamage v. Fischer, 100 AD3d 1176, 1176 [2012]; Matter of Ramos v. Selsky, 48 AD3d 863, 864 [2008] ). Although petitioner maintained that the other inmate was the aggressor and he did not strike the inmate, substantial evidence in the record supports the finding that petitioner “engage[d] in fighting” in violation of prison rules (7 NYCRR 270.2[B][1][iv]; see Matter of Ortiz v. Goord, 298 A.D.2d 736, 737 [2002]; Matter of Kelly v. Goord, 251 A.D.2d 803, 803–804 [1998] ). Therefore, we find no reason to disturb the determination under review.

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

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