Matter of Deleon v Prack
2013 NY Slip Op 07902 [111 AD3d 1204]
November 27, 2013
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 25, 2013

In the Matter of Eliseo Deleon, Petitioner, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

[*1] Eliseo Deleon, Stormville, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

A substance abuse program assistant overheard petitioner declare to other inmates that he was going to hit the assistant "over the head with a . . . chair" if he was kept in the program for a prolonged period of time. Petitioner was accordingly charged in a misbehavior report with violating various prison disciplinary rules, and was found guilty of creating a disturbance following a tier III disciplinary hearing. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and the testimony of the program assistant who authored it provide substantial evidence to support the determination of guilt (see Matter of Phillips v Fischer, 79 AD3d 1492, 1492 [2010]; Matter of Johnson v Selsky, 271 AD2d 770, 770-771 [2000], lv dismissed and denied 95 NY2d 918 [2000]). Petitioner's assertion that the misbehavior report was authored in retaliation for a grievance he had filed created a credibility issue for the Hearing Officer to resolve (see Matter of Toliver v Commissioner of N.Y. State Dept. of Corr. & Community Supervision, 107 AD3d 1283, 1284 [2013]). [*2]

Petitioner's remaining contentions, to the extent that they are properly preserved for our review, have been examined and found to lack merit.

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