Hall v. Selsky

52 A.D.3d 1078, 860 N.Y.S.2d 296

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 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.

A frisk of petitioner found him to be in possession of 26 packets of a substance which tested to be heroin. As a consequence, petitioner was charged in a misbehavior report with drug possession and smuggling. A tier III disciplinary hearing ensued, after which petitioner was found guilty of both charges. Upon administrative appeal, that determination was affirmed with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding seeking annulment.

We confirm. The misbehavior report, along with the positive drug test results and related documentation, as well as the testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Cooper v Selsky, 43 AD3d 1254, 1255 [2007], appeal dismissed 9 NY3d 1026 [2008]). Petitioner’s denial that he had any drugs on him created a credibility issue for resolution by the Hearing Officer (see Matter of Jones v Goord, 50 AD3d 1427 [2008]). We have examined petitioner’s remaining contentions, including his claims that the chain of custody was defective, he was denied the right to present witness testimony and the hearing was untimely, and find no reason to disturb the determination.

Cardona, P.J., Spain, Rose, Lahtinen and Malone Jr., JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.