Matter of Perez v Dubray

Matter of Perez v Dubray 2008 NY Slip Op 08065 [55 AD3d 1119] October 23, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

In the Matter of John Perez, Petitioner, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] John Perez, Stormville, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 a prison disciplinary rule.

As the result of an incident in which a correction officer observed petitioner throw punches at another inmate, petitioner was charged in a misbehavior report with assault. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Initially, we note that the matter was properly transferred to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Young v Selsky, 32 AD3d 598 [2006]). Turning to the merits, the misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Peoples v Selsky, 33 AD3d 1179, 1180 [2006]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Ramos v Selsky, 48 AD3d 863, 864 [2008]). In view of the foregoing, we find no reason to disturb the determination of guilt. [*2]

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