In the Matter of Walter Belle, Petitioner, v. Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents

In the Matter of Walter Belle, Petitioner, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents. [704 NYS2d 518] [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 respondent Superintendent of Mohawk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules. Following a tier II hearing, petitioner, a prison inmate, was found guilty of creating a disturbance, refusing a direct order and making false statements. The misbehavior report, combined with the corroborating testimony by the correction officer who authored the misbehavior report and the inmate who heard petitioner talking, provide substantial evidence to support the determination of guilt (see, Matter of McNair v Goord, 265 AD2d 716; Matter of Rosario v Goord, 265 AD2d 717). Petitioner’s contention that the reporting correction officer fabricated the allegations in the misbehavior report in retaliation is waived as petitioner failed to raise this issue at the hearing (see, Matter of Velez v Goord, 262 AD2d 906). We have considered petitioner’s remaining contentions, including his claim that the second correction officer who overheard the incident should not have endorsed the misbehavior report, and find them to be without merit. Cardona, P. J., Mercure, Crew III, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.