Garcia v. Coombe

233 A.D.2d 655, 649 N.Y.S.2d 834, 1996 N.Y. App. Div. LEXIS 11736

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate at Shawangunk Correctional Facility in Ulster County, was the subject of two misbehavior reports. Following a disciplinary hearing, petitioner was found guilty of possession of a controlled substance, possession of contraband, interference with an employee and possession of unauthorized property. Petitioner challenges this determination on the ground that it was not supported by substantial evidence and that the penalty of 180 days’ confinement in the special housing unit with loss of privileges was harsh and excessive. We disagree.

The evidence adduced against petitioner, i.e., the misbehavior reports and the testimony of the correction officers who had written the reports, based on their personal observations, constituted substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). That petitioner’s testimony was in conflict with that of the correction officers presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Burgos v Coughlin, 216 AD2d 705). Finally, we find that the penalty was appropriate under the circumstances presented here.

Mercure, J. P., Casey, Yesawich Jr., Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.