Gioe v. Selsky

269 A.D.2d 644, 705 N.Y.S.2d 81, 2000 N.Y. App. Div. LEXIS 1073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2000
• 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 a prison disciplinary rule.

Following a disciplinary hearing, petitioner, a prison inmate, was found guilty of exchanging drugs in violation of a prison disciplinary rule. According to the misbehavior report, a correction officer observed petitioner pass a package to another inmate in a “very suspicious” manner. When the other inmate was frisked, it was discovered that the package contained a substance which later was shown to be marihuana. Contrary to petitioner’s contention, the misbehavior report, authored by a correction officer who witnessed the exchange and endorsed by the correction officer who frisked the recipient of the package, together with the testimony presented at the hearing provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964). The conflicting testimony presented by petitioner merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Alvarado v Goord, 252 AD2d 650). The remaining arguments included in petitioner’s brief, including his challenge to the sufficiency of the misbehavior report and his claim of Hearing Officer bias, have been waived due to his failure to raise them on his administrative appeal or in the petition. In any event, were these contentions properly before us, we would find them to be unpersuasive.

Cardona, P. J., Mercure, Carpinello, Graífeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.