Silva v. Coughlin ( 1992 )

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

We find that the misbehavior report, coupled with the testimony of the correction officer who authored the report and witnessed the incident, established that petitioner exchanged punches with another inmate and thus provided substantial evidence to support the Hearing Officer’s finding of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). Petitioner’s reliance on Matter of Parker v Kelly (140 AD2d 993) for the proposition that his conduct was defensive and therefore not sufficient to support the finding of guilt is misplaced. Here the correction officer witnessed petitioner affirmatively strike the other inmate involved in the incident, whereas in Parker the petitioner merely pushed away an inmate who had been the initial aggressor (see, Matter of Abreu v Coughlin, 157 AD2d 1028). Testimony of petitioner and his witnesses, which contradicted the correction officer’s testimony, presented a credibility issue for the Hearing Officer to resolve (see, Matter of Valera v Selsky, 185 AD2d 481; Matter of Abreu v Coughlin, supra).

Mikoll, J. P., Yesawich Jr., Crew III, Mahoney and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.