In the Matter of Albert Lang, Respondent, v. Walter R. Kelly, as Superintendent of Attica Correctional Facility, Appellant

In the Matter of Albert Lang, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, Appellant. [MAJORITY] Judgment unanimously vacated on the law, determination confirmed and petition dismissed. Memorandum: Special Term erred in failing to transfer this CPLR article 78 proceeding, which alleged that respondent’s determination was not supported by substantial evidence (CPLR 7804 [g]). Moreover, contrary to the finding below, we conclude that there is substantial evidence, based on the written misbehavior report, to support respondent’s determination that petitioner disobeyed a direct order (People ex rel. Vega v Smith, 66 NY2d 130). The essential issue at the hearing was credibility, and the Hearing Officer was entitled to credit the officer’s report. If petitioner wished to cross-examine the charging officer, he had the right to call the officer as a witness (Matter of Curl v Kelly, 125 AD2d 948). (Appeal from judgment of Supreme Court, Wyoming County, Newman, J. — art 78.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.