Rodriguez v. Portuondo , 734 N.Y.S.2d 693 ( 2001 )

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

Following a disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule that prohibits fighting. Included in the evidence presented at the hearing were the misbehavior report and testimony from the correction officer who wrote it. The officer testified that he had observed petitioner engaged “in an obvious fight” with another inmate and that although the fight was quickly broken up, petitioner nonetheless sustained multiple abrasions and a ripped shirt. Petitioner and the other inmate involved in the incident gave contrary testimony, asserting that the correction officer must have misinterpreted a friendly session of horseplay for a serious fight.

Substantial evidence supports the determination of petitioner’s guilt in the form of the misbehavior report and the testimony of the reporting correction officer who witnessed the charged misconduct (see, Matter of Burr v Goord, 287 AD2d 931; Matter of Lunney v Selsky, 275 AD2d 820). The exculpatory evidence presented by petitioner raised an issue of credibility that the Hearing Officer was free to resolve against him in the exercise of his discretion (see, Matter of Acevedo v Superintendent of Elmira Correctional Facility, 265 AD2d 763). The remaining contentions raised in this proceeding have been reviewed and found to be without merit.

Mercure, J. P., Crew III, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.