Pagan v. Selsky

Jun 3, 1999
Versions:262 A.D.2d 683
692 N.Y.S.2d 477
1999 N.Y. App. Div. LEXIS 6250

—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.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from assaulting other inmates, possessing weapons, fighting and engaging in violent conduct after petitioner was observed participating in a melee involving numerous other inmates while wielding a shank-type weapon. The assault charge was reversed upon petitioner’s administrative appeal and the penalty was reduced; the remaining charges, however, were affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the residual determination. We confirm.

Contrary to petitioner’s contention, we find that the detailed misbehavior report, combined with the reporting officer’s testimony as to his eyewitness observations, provide substantial evidence of his guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner denied possessing a weapon or acting in an aggressive fashion, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Finally, we note that the remaining arguments raised in petitioner’s brief, including his claim of Hearing Officer bias and his challenge to the adequacy of his employee assistance, have been waived due to his failure to object at the hearing. In any event, were these contentions properly before us, we would find them to be unsupported by the record.

Mikoll, J. P., Crew III, Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.