Colon v. Coombe

232 A.D.2d 701, 647 N.Y.S.2d 1010, 1996 N.Y. App. Div. LEXIS 10002

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1996
• Status: Published

Opinion

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

Petitioner was an inmate at Southport Correctional Facility in Chemung County when he was found guilty of violating a prison disciplinary rule prohibiting the possession and exchange of any controlled substance, in this instance, marihuana. Petitioner challenges this determination, contending that it was not based on substantial evidence. The record, however, does not support petitioner’s contention.

Adduced in evidence was the testimony of a correction officer who saw petitioner sliding an envelope along a fishing line strung between his cell and that of another inmate. Also in evidence were the results of laboratory tests disclosing that the envelope contained marihuana. This evidence was corroborated by the detailed misbehavior report describing the conduct in question. While petitioner presented his own exculpatory testimony as well as that of his fellow inmates, such testimony presented a question of credibility which was appropriately determined by the Hearing Officer (see, Matter of Foster v Coughlin, 76 NY2d 964, 966).

We are unpersuaded by petitioner’s charge of bias on the part of the Hearing Officer. The record discloses that the hearing was conducted in a fair and impartial manner.

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