Hoskins v. Fischer

49 A.D.3d 1009, 853 N.Y.2d 422

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2008
• Status: Published

Opinion

Having attempted to pass a cigarette pack containing seven Biaxin pills into another inmate’s prison cell, petitioner was charged in a misbehavior report with possession/exchange of unauthorized medication and unauthorized exchange of personal property. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding followed.

We confirm. The misbehavior report, the corroborating hearing testimony from the correction officer who authored it, and the hearing testimony from a nurse confirming that petitioner did not have a prescription for the medication in question comprise substantial evidence in support of the determination of guilt (see Matter of McKinley v Goord, 40 AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]; Matter of Matthews v Goord, 275 AD2d 841, 841 [2000]). Conflicting testimony offered by petitioner created a credibility issue for resolution by the Hearing Officer (see Matter of Morillo v Goord, 38 AD3d 947, 947-948 [2007]).

We reject petitioner’s claim that he was denied the right to attend part of the hearing. The record contains substantial evidence supporting the Hearing Officer’s determination that petitioner refused to attend, thereby waiving his right to be present (see Matter of Davis v Goord, 20 AD3d 706, 707-708 [2005], lv denied 5 NY3d 715 [2005]).

Petitioner’s remaining contentions have been examined and are unavailing.

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