Collins v. Bezio

73 A.D.3d 1252, 899 N.Y.S.2d 682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2010
• Status: Published

Opinion

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

Petitioner was charged in a misbehavior report with engaging in gang-related activities after a correction officer recovered photographs depicting petitioner exhibiting a hand signal known to be used by an unauthorized gang. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report, the testimony of the correction sergeant who authored it and who had expertise in identifying gang-related gestures and symbols, and the photographs of petitioner displaying the objectionable hand signal, support the determination of guilt (see Matter of Wheeler-Whichard v Fischer, 69 AD3d 1286, 1286 [2010]; Matter of Jenkins v Goord, 30 AD3d 719, 720 [2006]). Petitioner’s denial of gang affiliation or of making a gang-related hand gesture presented a credibility issue for the Hearing Officer to resolve (see Matter of Glover v Fischer, 68 AD3d 1404 [2009]; Matter of Benston v Fischer, 67 AD3d 1139, 1140 [2009]). Petitioner’s claims of procedural errors have not been preserved for our review due to his failure to raise them at the hearing (see Matter of Burgess v Goord, 30 AD3d 877, 878 [2006]).

Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.