Matter of Benson v Selsky

Matter of Benson v Selsky 2008 NY Slip Op 03360 [50 AD3d 1347] April 17, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 18, 2008

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

—[*1] Wayne Benson, Malone, 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.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of creating a disturbance, engaging in violent conduct, assaulting an inmate, fighting, possessing a weapon and refusing a direct order. We now confirm.

The misbehavior report, as amplified by hearing testimony from the correction officer who authored it, relates that petitioner went after another inmate with a mop stick and then, ignoring numerous orders from the officer to stop, proceeded to exchange punches with the inmate. The foregoing constitutes substantial evidence to support the determination of guilt (see Matter of Chavis v Goord, 45 AD3d 1063, 1064 [2007]). To the extent that petitioner offered exculpatory statements, credibility issues were created for resolution by the Hearing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007]). Petitioner's remaining contentions, including his claim that he was denied an impartial hearing, have been considered and found to be unavailing. [*2]

Cardona, P.J., Spain, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.