Morales v. Goord

290 A.D.2d 790, 736 N.Y.S.2d 494, 2002 N.Y. App. Div. LEXIS 395

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2002
• 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized transfer of items between inmates and visitors. According to the misbehavior report, petitioner was in the visiting room of the special housing unit, playing cards and conversing with his wife, when he was observed taking something from her which he put down the front of his pants. Suspecting that petitioner had secreted the transferred object in his rectum, correction officers strip-searched petitioner and then confined him in an observation cell for 48 hours. No contraband was found.

At the disciplinary hearing that followed, substantial evidence of petitioner’s guilt of the charged misconduct was presented in the form of the misbehavior report and the surveillance videotape which shows petitioner taking an object from a female visitor and placing it down his pants (see, Matter of Serrano v Goord, 266 AD2d 661, lv denied 94 NY2d 762; Matter of Rodriguez v Senkowski, 202 AD2d 761). Petitioner’s testimony, in which he explained that he had only reached into his pants to “rearrange” himself after becoming sexually aroused, raised an issue of credibility for resolution by the Hearing Officer (see, Matter of Alejandro v Goord, 278 AD2d 731; Matter of Garcia v Goord, 261 AD2d 674, lv dismissed 94 NY2d 834). The remaining contentions raised herein have been examined and found to be without merit.

Cardona, P.J., Crew III, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.