                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   519097
________________________________

In the Matter of PETER LOPEZ,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Peters, P.J., Rose, Egan Jr. and Devine, JJ.

                             __________


     Peter Lopez, Napanoch, 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 Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      During the course of an investigation in which confidential
information was received, correction officials discovered that
petitioner had perpetrated an assault upon another inmate causing
him injuries. As a result, he was charged in a misbehavior
report with assaulting an inmate, creating a disturbance,
engaging in violent conduct and possessing a weapon. He was
found guilty of the charges following a tier III disciplinary
hearing and the determination was later affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.
                              -2-                519097

      Initially, respondent concedes and we agree that
substantial evidence does not support that part of the
determination finding petitioner guilty of creating a disturbance
(see Matter of Walker v Fischer, 108 AD3d 999, 1000 [2013]). We
further find, upon a thorough review of the record, that
substantial evidence does not support that part of the
determination finding petitioner guilty of possessing a weapon
inasmuch as no weapon was ever recovered, no one witnessed
petitioner in possession of a weapon and the medical evidence on
this issue is not compelling (compare Matter of Fernandez v
Fischer, 110 AD3d 1422, 1422-1423 [2012]). Therefore, the
determination of guilt with respect to these two charges must be
annulled. Inasmuch as a loss of good time was imposed, the
matter must be remitted for a redetermination of the penalty on
the remaining charges, which we find to be supported by
substantial evidence (see Matter of Dizak v Prack, 120 AD3d 1472,
1473 [2014]; Matter of Haigler v Fischer, 119 AD3d 1261, 1262
[2014], lv denied 24 NY3d 908 [2014]).

      The misbehavior report and related documentation, together
with the testimony presented both at the hearing and
confidentially, provide substantial evidence supporting that part
of the determination finding petitioner guilty of assaulting an
inmate and engaging in violent conduct (see Matter of Espinal v
Fischer, 114 AD3d 978, 978-979 [2014]; Matter of Williams v
Fischer, 111 AD3d 1001, 1001 [2013]). Although petitioner denied
any misconduct and claimed to be a victim of retaliation, this
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Clark v Fischer, 120 AD3d 1468, 1469 [2014], lv
denied ___ NY3d ___ [Jan. 8, 2015]; Matter of Lashway v Fischer,
110 AD3d 1420, 1420 [2013]). Moreover, there is nothing to
indicate that the Hearing Officer was involved in the
investigation and should not have presided over the hearing or
that he was biased (see Matter of Olutosin v Fischer, 98 AD3d
1178, 1179 [2012], lv denied 20 NY3d 855 [2013]; see also 7 NYCRR
254.1). Petitioner's remaining contentions, including his claims
that he was improperly denied witnesses as well as certain
documentary evidence, have been considered and are lacking in
merit.
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     Peters, P.J., Rose, Egan Jr. and Devine, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
creating a disturbance and possessing a weapon; petition granted
to that extent, the Commissioner of Corrections and Community
Supervision is directed to expunge all references to these
charges from petitioner's institutional record, and matter
remitted to the Commissioner of Corrections and Community
Supervision for an administrative redetermination of the penalty
on the remaining violations; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
