De Villar v. Goord

8 A.D.3d 940, 778 N.Y.S.2d 732

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 2004
• 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.

As the result of an incident in which petitioner purchased goods from the prison commissary by holding himself out as another inmate, petitioner was charged in a misbehavior report with being out of place, possessing stolen property and impersonation. He was found guilty of these charges following a tier III disciplinary hearing. The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Testimony from the commissary store clerk, the correction officer who authored the misbehavior report, the confidential testimony considered in camera by the Hearing Officer and the documentary evidence contained in the record provide substantial evidence supporting the determination of guilt (see Matter of Pabon v Goord, 6 AD3d 833, 834 [2004]). Petitioner’s claim that a conversation with the store clerk, which triggered her recollection of the transaction, could not have occurred because he only speaks Spanish presented a credibility issue for the Hearing Officer to resolve (see Matter of Bankston v Selsky, 301 AD2d 984, 985 [2003]).

We have considered petitioner’s remaining contentions, to the extent that they are properly before us, and find them unavailing.

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