Bonez v. Senkowski

Oct 21, 1999
Versions:265 A.D.2d 713
696 N.Y.S.2d 574
696 N.Y.2d 574
1999 N.Y. App. Div. LEXIS 10706

—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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

The misbehavior report and the corroborating testimony of the physician’s assistant describing petitioner’s disruptive behavior when he was denied medical showers provides substantial evidence to support the determination which found him guilty of attempted assault on staff and interference with an employee in violation of certain prison disciplinary rules (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). While the Hearing Officer failed to supply petitioner with a written explanation for the denial of his request for a character witness (see, 7 NYCRR 254.5 [a]), we nonetheless find no reason to set aside the determination inasmuch as the record clearly discloses the reason for the denial, i.e., that the witness had no first-hand knowledge of the incident (see, Matter of Morrison v Selsky, 246 AD2d 939; see also, Matter of Danaher v Coombe, 242 AD2d 754). To the extent that petitioner asserts that the misbehavior report was fabricated and written in retaliation for the grievance he filed against the physician’s assistant, this merely presented a credibility issue for resolution by the Hearing Officer (see, Matter of Lawrence v Headley, 257 AD2d 837). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Cardona, P. J., Mikoll, Peters, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.