Christian v. Poole

284 A.D.2d 759, 726 N.Y.S.2d 592, 2001 N.Y. App. Div. LEXIS 6607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2001
• Status: Published

Opinion

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

Following a tier III hearing,

* petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from engaging in unauthorized organizational activities and giving speeches or addresses other than those approved by a Superintendent of a facility. Upon administrative appeal, the charge of engaging in unauthorized organizational activities was dismissed and petitioner commenced this CPLR article 78 proceeding seeking to annul the finding of guilt on the remaining charge. Contrary to petitioner’s contention, the misbehavior report, together with the testimony adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Foster v Coughlin, 76 NY2d 964; Matter of Coleman v Harko, 183 AD2d 1016). Petitioner’s differing version of the events created a credibility issue for the Hearing Officer to resolve (see, Matter of Collazo v Senkowski, 282 AD2d 851).

We have reviewed petitioner’s remaining contentions and conclude that they are either unpreserved for our review or lacking in merit.

Cardona, P. J., Crew III, Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Petitioner’s hearing also addressed charges contained in a second misbehavior report written as a result of a separate incident. Inasmuch as petitioner was found not guilty of those charges, they are not at issue in this proceeding.