                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     519914
________________________________

In the Matter of NJERA WILSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   May 5, 2015

Before:   Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

                               __________


     Njera Wilson, Dannemora, petitioner pro se.

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

                               __________


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

      During the course of a pat frisk, petitioner swung his
elbow toward a correction officer and attempted to strike him.
As a result, he was charged in a misbehavior report with
attempting to assault staff, refusing a direct order and creating
a disturbance. Following a tier III disciplinary hearing,
petitioner was found guilty of attempting to assault staff, but
not guilty of the other charges. The determination was later
affirmed on administrative appeal and this CPLR article 78
                              -2-                  519914

proceeding ensued.

      We confirm. The misbehavior report, related documentation
and hearing testimony provide substantial evidence supporting the
determination of guilt (see Matter of Morrison v Prack, 122 AD3d
996, 996 [2014]; Matter of Quezada v Fischer, 113 AD3d 1004, 1004
[2014]). Although petitioner denied trying to strike the officer
and stated that it was he who was assaulted, his testimony
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013];
Matter of Moreno v Fischer, 100 AD3d 1167, 1167-1168 [2012]).
Moreover, we find no merit to petitioner's claim that he was
improperly denied the unusual incident report, as such report did
not exist (see Matter of Mendez v Annucci, 126 AD3d 1216, 1217
[2015]; Matter of Martin v Fischer, 109 AD3d 1026, 1027 [2013]).
We have considered petitioner's remaining contentions and find
that they are either unpreserved for our review or are
unpersuasive.

     Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
