Henriquez v. Dubray

51 A.D.3d 1350, 857 N.Y.S.2d 513

• 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 Albany County) to review a determination of the Commissioner of Correctional Services which fon rid petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with verbally threatening a facility employee. After a tier III disciplinary hearing, petitioner was found guilty. Petitioner’s unsuccessful administrative appeal prompted this CPLR article 78 proceeding challenging the determination.

The determination of guilt is supported by substantial evidence consisting of the misbehavior report and testimony at the hearing from the report’s author and by petitioner (see Matter of Harvey v Goord, 47 AD3d 1096, 1096 [2008]). To the extent that petitioner denied that his comments were intended as threats, a credibility issue was created for resolution by the Hearing Officer (see Matter of Garner v Selsky, 47 AD3d 1167, 1167 [2008]). Accordingly, the determination is confirmed.

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