MATTER OF ROBERTS v. SELSKY

Determination unanimously confirmed without costs and petition dismissed. Memorandum: After a Tier III hearing, petitioner was found guilty of violating inmate rule 101.10 ( 7 NYCRR 270.2 [B] [2] [i] [inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts]). The misbehavior report constitutes substantial evidence supporting the determination ( see, Matter of Parker v. Coughlin, 211 A.D.2d 929; see also, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). Petitioner's explanation of the incident at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer resolved in favor of the correction officer's version of the incident ( see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). Contrary to petitioner's contention, the misbehavior report was not so discredited that it was insufficient to support the determination of guilt ( cf., Matter of Horn v. Coughlin, 198 A.D.2d 745).

We reject petitioner's contention that intermittent gaps in the hearing transcript require annulment. "[T]he missing testimony `is neither material to the determination nor of such significance as to preclude meaningful review ( Matter of Rodriguez v. Coughlin, 167 A.D.2d 671)" ( Matter of Torres v. Coombe, 234 A.D.2d 710, 710-711).

The record does not support petitioner's contention that the Hearing Officer was biased ( see, Matter of Parker v. Coughlin, supra; Matter of Martinez v. Scully, 194 A.D.2d 679). Petitioner's contention that the rules fail to state the range of disciplinary sanctions lacks merit ( see, Matter of Coleman v. Kelly, 72 N.Y.2d 850, 852). The penalty imposed is not excessive. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.)