Matter of Gordon Wilson v Glenn S. Goord

Matter of Wilson v Goord 2005 NY Slip Op 08171 [23 AD3d 727] November 3, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Gordon Wilson, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

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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 became verbally abusive during a pat frisk and tried to strike a correction officer, requiring the use of mechanical restraints to subdue him. As a result of this incident, he was charged in a misbehavior report with assaulting staff, refusing a direct order, engaging in harassment and failing to comply with frisk procedures. At a subsequent tier III disciplinary hearing, petitioner pleaded guilty to engaging in harassment and failing to comply with frisk procedures. He was found guilty of all charges at the conclusion of the hearing. Thereafter, the determination was upheld on administrative appeal, but the penalty was modified. This CPLR article 78 proceeding ensued.

We confirm. Petitioner's sole challenge is to that part of the determination finding him guilty of assaulting staff. The misbehavior report, together with the testimony of a sergeant who witnessed the incident and the other documentary evidence, establish that petitioner swung at the officer with a closed fist but failed to make contact and provide substantial evidence supporting respondent's determination (see Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Petitioner's denial of such conduct presented a credibility issue for the Hearing Officer to resolve (see Matter of Santiago v Goord, 11 AD3d 845, 846 [2004]). Consequently, we decline to [*2]disturb respondent's determination.

Crew III, J.P., Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.