Delgado v. Coombe , 651 N.Y.S.2d 938 ( 1996 )

—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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating prison disciplinary rules that prohibit conduct disturbing the order of the facility, leading others to participate in actions detrimental to the order of the facility and refusing to obey a direct order. Petitioner challenges the determination of his guilt on the ground that it was not supported by substantial evidence in the record. We disagree.

Received in evidence at the disciplinary hearing was the misbehavior report, written by a correction officer shortly after he witnessed the conduct in question. This report was "sufficiently relevant and probative” to support the determination of petitioner’s guilt on its own merit (Matter of Perez v Wilmot, 67 NY2d 615, 616-617; see, Matter of Boyce v Coughlin, 191 AD2d 936, lv denied 82 NY2d 651). To the extent that petitioner’s testimony and that of his inmate witnesses conflicted with the narration contained in the misbehavior report, such conflict presented an issue of credibility which was within the province of the Hearing Officer to determine (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). We have examined petitioner’s remaining contentions and find them to be either without merit or unpreserved for our review.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.