
    In the Matter of Frank Smith, Petitioner, v Philip Coombe, Jr., as Commissioner of the New York State Department of Correctional Services, Respondent.
    [651 NYS2d 942]
   —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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

While an inmate at Eastern Correctional Facility in Ulster County, petitioner was charged with, and ultimately found guilty of, violating prison disciplinary rules prohibiting assault on other inmates and fighting. Petitioner challenges this determination, which was administratively affirmed, on the ground that it is not supported by substantial evidence. This argument lacks merit.

The inmate misbehavior report, coupled with petitioner’s own testimony, constitute substantial evidence supporting the determination. Petitioner testified at the hearing that he gave another inmate "a beat with [his] hands” that consisted of "[a] couple of punches” (although he later admitted that he was not sure how many times he hit the other inmate because he was "in the heat of the fight”). Petitioner further recounted that he hit the other inmate "with a left and a right”, that he "threw [him] on the floor” and "punched him in the face”. Petitioner also admitted that when on the floor, the other inmate was not fighting back. Petitioner described the incident as "a wrestling match” and testified that he was pressured into it because the other inmate had been keeping him up at night by banging on their adjoining cell wall. Thus, although it was unrefuted that petitioner did not start this fight, the record makes clear that petitioner was an active and willing participant therein and guilty of the violations charged (see, Matter of Washington v Coombe, 226 AD2d 792). Finally, we reject petitioner’s claim that the determination should be annulled because he was acting in self-defense as this merely presented a credibility issue for the Hearing Officer to resolve (see, Matter of Lowrence v Mann, 189 AD2d 1036).

Mercure, J. P., Crew III, Casey, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.  