Glod v. Fischer

98 A.D.3d 1173, 950 N.Y.S.2d 820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 20, 2012
• 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 smuggling, possession of an altered state-owned item and possession of a weapon. According to the report, information from a confidential source prompted staff to conduct a pat frisk of all inmates in a certain area. In the course thereof, a razor blade was found hidden in the “zippered collar area” of petitioner’s coat. Following a tier III disciplinary hearing, petitioner was found guilty of the smuggling and weapon charges. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the related documentation and testimony of petitioner and the involved correction staff, supports the determination of guilt (see Matter of Randall v Fischer, 94 AD3d 1302, 1302 [2012]; Matter of Alache v Fischer, 91 AD3d 1240, 1241 [2012]). Petitioner’s denials that the coat and the weapon belonged to him created a credibility question for the Hearing Officer to resolve (see Matter of James v Bezio, 94 AD3d 1312, 1312-1313 [2012]). Notably, two correction officers and a correction sergeant testified that petitioner originally identified the coat as his at the time of the incident. As for petitioner’s contention that the misbehavior report lacked specificity, to the extent that it is preserved, it is without merit (see Matter of Tafari v Selsky, 34 AD3d 943, 944 [2006], lv denied 8 NY3d 809 [2007]).

The remaining arguments advanced by petitioner have been examined and found to be unpersuasive.

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