Garner v. Selsky

47 A.D.3d 1167, 849 N.Y.S.2d 456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2008
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a telephone conversation with his wife, petitioner requested that she bring him some marihuana when visiting him. Consequently, he was charged in a misbehavior report with conspiracy to possess drugs, attempted smuggling and a violation of the facility telephone program. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of all charges. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report, accompanying documentation, hearing testimony and confidential information comprise substantial evidence to support the determination of guilt (see Matter of Sowell v Selsky, 43 AD3d 1226, 1226 [2007]; Matter of Reddick v Goord, 43 AD3d 503, 503 [2007]). To the extent that petitioner denied the allegations, a credibility issue was created for resolution by the Hearing Officer (see Matter of Rivera v Selsky, 43 AD3d 1210, 1210 [2007]). Petitioner’s remaining contentions, including his claims that he was improperly denied the right to call witnesses and deprived of an impartial hearing, have been examined and found to be unavailing.

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