           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

910
TP 16-00103
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


IN THE MATTER OF SAMUEL WALTON, PETITIONER,

                      V                            MEMORANDUM AND ORDER

JOHN COLVIN, SUPERINTENDENT, FIVE POINTS
CORRECTIONAL FACILITY AND ANTHONY ANNUCCI,
ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT
OF CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS.


SAMUEL WALTON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Seneca County [Dennis F.
Bender, A.J.], entered January 19, 2016) to review a determination
finding after a tier II hearing that petitioner had violated two
inmate rules.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier II disciplinary
hearing, that he violated two inmate rules. We reject petitioner’s
contention that the determination is not supported by substantial
evidence. Specifically, the misbehavior report, together with the
videotape of the incident and the hearing testimony of the correction
officer who prepared the misbehavior report, “constitutes substantial
evidence supporting the determination that petitioner violated [the]
inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648,
1648). Petitioner’s denials of the reported misbehavior presented
only an issue of credibility for resolution by the Hearing Officer
(see Matter of Foster v Coughlin, 76 NY2d 964, 966).




Entered:    November 10, 2016                    Frances E. Cafarell
                                                 Clerk of the Court
