Johnson v. Barkley

260 A.D.2d 882, 689 N.Y.S.2d 537, 1999 N.Y. App. Div. LEXIS 4226

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a tier II disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting the possession of contraband. The misbehavior report stated that on February 6, 1998 a correction officer discovered a mess hall fork under petitioner’s locker while performing a “cube” search. In our view, the clear and detailed misbehavior report, combined with the testimony of the correction officer involved in the search, constitute sufficient evidence to substantiate the alleged misconduct (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner’s inmate witnesses testified that there was no fork under the locker, this merely presented a credibility issue for the Hearing Officer to resolve (see, Matter of Flowers v Barkley, 244 AD2d 682, 683). We have examined petitioner’s remaining contentions and find them to be lacking in merit. Contrary to petitioner’s argument, it was his own responsibility to make sure that no unauthorized items were present in his cell.

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