Hernandez v. Selsky , 764 N.Y.S.2d 663 ( 2003 )

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

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit fighting, violent conduct and assaulting another inmate. The charges stem from an investigation of an incident wherein petitioner was found with severe lacerations and wounds, staggering down the walkway leading to the law library. A search of the area uncovered weapons consistent with petitioner’s injuries and those of a fellow inmate in the law library. The hearing officer, who is authorized to make credibility determinations, found incredible both inmates’ testimony that they could not identify their attackers, and did not credit petitioner’s theory that he was merely a victim or acting in self-defense (see Matter of Bingham v Goord, 302 AD2d 837 [2003]; Matter of Ortiz v Goord, 298 AD2d 736 [2002]). Although neither the author of the misbehavior report nor any other correction officer witnessed the assault, “a determination may be supported by evidence that is entirely circumstantial” (Matter of Mullady v Goord, 270 AD2d 821, 821 [2000]). Here, both injured inmates were in the same hallway at the time of the assault, they were each assaulted at approximately the same time, each suffered slashing type injuries, no other inmates in the area were wounded, weapons found secreted in that area were consistent with each inmate’s injuries, credible confidential information revealed a motive for contention between these two inmates, and both inmates had abrasions on their fists consistent with offensive fighting. This proof constituted substantial evidence to support a guilty finding on all charges (see Matter of Gonzalez v Selsky, 294 AD2d 734 [2002]).

Crew III, J.P., Carpinello, Mugglin, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.