Joyner v. Smith

143 A.D.2d 522, 532 N.Y.S.2d 813, 1988 N.Y. App. Div. LEXIS 10670

Opinion

Judgment vacated on the law and determination unanimously confirmed and petition dismissed. Memorandum: Petitioner appeals from a judgment denying his CPLR article 78 petition to annul a determination made following a Tier II prison disciplinary hearing. It was determined that petitioner violated an inmate rule (7 NYCRR 270.1 [b] [2] [i]). Since the issue raised by the petition is whether the determination is supported by substantial evidence, Special Term should have transferred the case to this court rather than reaching the issue itself (CPLR 7804 [g]). The matter having reached this court, however, we may treat it as though it had been properly transferred and dispose of the issue de novo (see, Matter of Smith v Coughlin, 111 AD2d 503; Matter of Kincaide v Coughlin, 86 AD2d 893). The misbehavior report constitutes substantial evidence to support the Hearing Officer’s determination (see, People ex rel. Vega v Smith, 66 NY2d 130; Matter of Samuels v Kelly, 125 AD2d 1009). Issues of credibility are for the Hearing Officer to resolve (Matter of Perez v Wilmot, 67 NY2d 615). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Dillon, P. J., Denman, Green, Lawton and Davis, JJ.