McCann v. Goord

4 A.D.3d 712, 771 N.Y.S.2d 918, 2004 N.Y. App. Div. LEXIS 2026

Opinion

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

While in the facility exercise yard, petitioner was seen by a correction officer smoking a thinly-rolled cigarette and passing it to another inmate. When the two inmates noticed correction officers approaching, petitioner quickly left the area and the other inmate attempted to discard the cigarette. The cigarette was recovered and subsequent testing of the cigarette yielded positive results for marihuana. Contrary to petitioner’s contention, the misbehavior report written by a correction officer who witnessed the event provides substantial evidence to support the determination finding petitioner guilty of violating the prison disciplinary rule that prohibits possessing/exchanging a controlled substance (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Gioe v Selsky, 269 AD2d 644, 645 [2000]). The exculpatory explanation offered by petitioner raised an issue of credibility that the Hearing Officer was free to resolve against him (see Matter of Dowdy v Goord, 2 AD3d 1249, 1250 [2003]. Petitioner’s remaining contentions have been reviewed and found to be without merit.

Cardona, EJ., Mercure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.