175 A.D.2d 383 | N.Y. App. Div. | 1991
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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner called two correction officers to testify on his behalf. Although his investigation of petitioner’s version of the events indicated that the alleged classroom altercation never occurred, one officer acknowledged that he heard one inmate ask another if petitioner was the one they had "buffed” in the classroom. The second officer indicated that he thought petitioner might have been "jumped” because "I was told that [petitioner] didn’t have his glasses on during the fight and while frisking [petitioner] I found * * * glasses in his pocket broken in two or three pieces therefore [gap in transcript] * * * I could surmise that [petitioner] was beat up in the room also, but * * * I can’t by [sic] sure of that”. No other witnesses testified.
The Hearing Officer credited the misbehavior report, found petitioner guilty of all charges, and imposed a penalty of 365 days of confinement in the special housing unit and loss of various privileges. The determination was administratively affirmed. In this proceeding, petitioner maintains that the determination is not supported by substantial evidence and that respondent’s interpretation of the regulation barring possession of contraband that may be classified as a weapon by use is irrational, arbitrary and capricious. We agree with the latter argument only and modify the determination accordingly.
Credibility was the overriding issue at the hearing at which the Hearing Officer chose to credit the misbehavior report and disbelieve petitioner. Given that the two witnesses called did not substantiate petitioner’s justification defense with anything more than conjecture, the determination that defendant was guilty of an assault on an inmate as well as fighting must be confirmed (see, Matter of Perez v Wilmot, 67 NY2d 615, 617).
Mahoney, P. J., Weiss, Mikoll and Harvey, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possession of contraband; respondent is directed to expunge from petitioner’s institutional record all references thereto; and, as so modified, confirmed.