Nunez v. Selsky

276 A.D.2d 962, 715 N.Y.S.2d 918, 2000 N.Y. App. Div. LEXIS 10835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2000
• 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from requesting unauthorized goods and soliciting an individual to smuggle. According to the misbehavior report, petitioner requested that a correction officer sneak alcohol into the facility. This determination was affirmed upon petitioner’s administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding and we confirm.

Contrary to petitioner’s contention, we find that the misbehavior report, combined with the hearing evidence and the reporting officer’s testimony, provide substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner maintained that he never made the request for alcohol, this disparity in testimony raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811).

Petitioner’s remaining arguments have been examined and found to be unpersuasive. The misbehavior report was not untimely served because it was not authored until after the investigation of the incident was complete. We are convinced upon review of the record that the misbehavior report was prepared “as soon as practicable” (7 NYCRR 251-3.1 [a]).

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