Gawlick v. Fischer

50 A.D.3d 1282, 854 N.Y.S.2d 322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possession of a controlled substance, use of a controlled substance and possession of unauthorized medication. The report was issued after petitioner, while in the course of being treated for seizure-like activity, stated that he had smoked some marihuana and ingested certain medication that he received from another inmate and for which it was subsequently determined that petitioner had no prescription. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of all three charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. Contrary to petitioner’s assertion, the misbehavior report, along with testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Tafari v Selsky, 45 AD3d 1139, 1139 [2007]). Petitioner’s exculpatory statements created credibility issues to be resolved by the Hearing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007], lv denied 10 NY3d 702 [2008]). Petitioner’s remaining contentions, to the extent not specifically addressed herein, have been examined and found to be unavailing.

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