Bailey v. Burge

48 A.D.3d 854, 850 N.Y.S.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2008
• Status: Published

Opinion

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.

A search of petitioner’s prison cell discovered two wires running along the floor which were concealed by some form of glue and paint. As a result, petitioner was charged in a misbehavior report with possession of contraband, possession of property in an unauthorized area and misuse of state property. Following a tier II disciplinary hearing, petitioner was found guilty of all charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report and related photograph, along with the hearing testimony from the correction officer who issued the report (see Matter of Ford v Smith, 23 AD3d 874, 875 [2005], lv denied 6 NY3d 708 [2006]). Petitioner’s assertion that he did not possess the subject wires created a credibility issue for resolution by the Hearing Officer (see Matter of Rivera v Selsky, 43 AD3d 1210, 1210 [2007]). Petitioner’s remaining contentions, including his claim that he was deprived of an impartial hearing, are unpreserved for our review (see Matter of Hamilton v Goord, 32 AD3d 642, 643 [2006], lv denied 7 NY3d 715 [2006]).

Mercure, J.P, Spain, Lahtinen, Kane and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.