Bristow v. Selsky

267 A.D.2d 534, 698 N.Y.S.2d 560, 1999 N.Y. App. Div. LEXIS 12461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1999
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from possessing weapons based upon proof indicating that a sharpened metal shank was found secreted in the back of petitioner’s toilet. This determination was affirmed upon petitioner’s administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

Contrary to petitioner’s contention, we find that the misbehavior report, combined with the reporting officer’s testimony, provide substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner denied possessing the weapon, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Additionally, we find that the hearing transcript was adequate for meaningful judicial review, and we reject petitioner’s contention that he was denied the right to call witnesses who would provide relevant testimony (see, Matter of Nedrick v Stinson, 263 AD2d 651, 652). The remaining arguments raised in petitioner’s brief, to the extent that they are properly before us, have been examined and found to be lacking in merit.

Cardona, P. J., Mikoll, Mercure, Crew III and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.