In the Matter of Ricardo A. Di Rose, Petitioner, v. New York State Department of Correctional Services, Respondent

In the Matter of Ricardo A. Di Rose, Petitioner, v New York State Department of Correctional Services, Respondent. [713 NYS2d 887] [MAJORITY] —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 Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of making verbal threats, violent conduct, disturbing the order of the facility and refusing a direct order. The misbehavior report alleged that petitioner and another inmate exchanged threats and refused to obey direct orders. Contrary to petitioner’s contention, the misbehavior report, together with the eyewitness testimony of its author, constitute substantial evidence to support the determination of petitioner’s guilt of the charges (see, Matter of Arias v Goord, 274 AD2d 807; Matter of Johnson v Selsky, 271 AD2d 770). Petitioner’s proffered claims that his words were not spoken in a threatening manner and that he did not hear the correction officer’s direct order presented credibility issues for the Hearing Officer to resolve (see, Matter of Lee v Goord, 272 AD2d 696). The fact that the Hearing Officer credited the misbehavior report and testimony offered by the correction officer who witnessed the incident does not establish bias (see, Matter of Faison v Goord, 268 AD2d 634). In any event, petitioner has failed to demonstrate that the outcome of the hearing flowed from the alleged bias (see, Matter of Madison v Goord, 273 AD2d 557, 558). We have examined petitioner’s remaining claims and find that they are not meritorious. Mercure, J. P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.