In the Matter of Lazaro Rivera, Petitioner, v. Glenn S. Goord, as Commissioner of the Department of Correctional Services, Respondent

In the Matter of Lazaro Rivera, Petitioner, v Glenn S. Goord, as Commissioner of the Department of Correctional Services, Respondent. [699 NYS2d 741] [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 which found petitioner guilty of violating certain prison disciplinary rules. Following a tier III disciplinary hearing at which petitioner, a prison inmate, pleaded guilty to fighting, he was found guilty of violating the prison disciplinary rules that prohibit inmates from fighting, disobeying a direct order and possessing a weapon. According to the misbehavior report written by the correction officer who observed the incident, petitioner began fighting with another inmate while released from his cell for a keeplock shower. Petitioner refused the correction officer’s initial order to stop fighting and, upon frisking petitioner, a plexiglass shank was found in his towel. In our view, the detailed misbehavior report provides substantial evidence to support the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966), notwithstanding petitioner’s contentions to the contrary. Although petitioner maintained that the weapon was not his and denied that he disobeyed a direct order, this merely presented a credibility issue for the Hearing Officer to resolve (see, Matter of Polite v Goord, 258 AD2d 795). Petitioner’s remaining contentions have been reviewed and found to be unpersuasive. Mercure, J. P., Crew III, Yesawich Jr., Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.