Matter of Brown v Selsky

Matter of Brown v Selsky 2008 NY Slip Op 02713 [49 AD3d 1108] March 27, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

In the Matter of Jonathan Brown, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Jonathan Brown, Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After petitioner was identified as being a member of a gang and having slashed another inmate with a folded can top, he was charged in a misbehavior report with assault, possession of a weapon and unauthorized organizational activity. At the conclusion of the ensuing tier III disciplinary hearing, petitioner was found guilty of all three charges. That determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment of the determination.

We confirm. The detailed misbehavior report, together with the extensive hearing testimony, comprise substantial evidence to support the determination of guilt (see Matter of Yancey v Conway, 46 AD3d 1042 [2007]). Regarding petitioner's denial of the allegations against him, a credibility issue was created for resolution by the Hearing Officer (see Matter of Johnson v Goord, 46 AD3d 1038, 1039 [2007]). As for petitioner's claim that he was denied the right to present witness testimony from another inmate, it is unpreserved for our review given [*2]petitioner's failure to object at the hearing (see Matter of Toledo v Selsky, 12 AD3d 824, 825 [2004]) and, in any event, is without merit inasmuch as the inmate stated on the record in petitioner's presence that he was unwilling to testify because he had no knowledge of the matter (see Matter of Williams v Goord, 242 AD2d 842, 842 [1997]). Petitioner's remaining contentions, to the extent not specifically addressed herein, have been examined and found to be unavailing.

Carpinello, J.P., Rose, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.