Harrison v. Bertone

51 A.D.3d 1350, 860 N.Y.S.2d 641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Having given another inmate two batteries, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the unauthorized exchange of personal property. At the conclusion of the ensuing tier II disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report and hearing testimony from both petitioner and the inmate to whom he gave the batteries (see Matter of Harvey v Goord, 47 AD3d 1096, 1096 [2008]). Petitioner’s conclusory assertion that he had received the appropriate permission to loan the batteries created a credibility issue for resolution by the Hearing Officer (see Matter of Humphrey v Goord, 42 AD3d 845, 845 [2007]). To the extent preserved, we have reviewed petitioner’s remaining contentions, including his claim that the penalty imposed was excessive, and find them to be unavailing.

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.