Santiago v. Goord

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

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit assault and possessing an altered item. Initially, respondent concedes that the finding of petitioner’s guilt on the altered item charge is not supported by substantial evidence thereby requiring that this charge be annulled and expunged from petitioner’s institutional record. Turning to the remaining charge, we find substantial evidence in the record to support the determination of guilt. The detailed misbehavior report, departmental memoranda, and the victim’s identification of petitioner as the assailant and his testimony provide substantial evidence of petitioner’s guilt (see, Matter of Morales v Ossining Correctional Facility, 278 AD2d 725). Although petitioner denied the charge, this presented a question of credibility for the Hearing Officer to resolve (see, Matter of Peters v Goord, 280 AD2d 738). Inasmuch as the matter must be remitted for reconsideration of the appropriate penalty for the assault charge alone, petitioner’s challenge to the severity of the penalty imposed will not be considered.

*842Cardona, P. J., Peters, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possession of an altered item; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner’s institutional record and matter remitted to respondent for redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.