Pacheco v. Dufrain

251 A.D.2d 817, 675 N.Y.S.2d 907, 1998 N.Y. App. Div. LEXIS 7363

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Essex County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit smuggling and possession of alcohol. The misbehavior report, together with the testimony of the confidential informants and that of the correction officer who investigated the incident, provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Parker v Goord, 247 AD2d 694, 695). Although certain testimony presented at the hearing was inconsistent with that provided by the confidential informants, this merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Emmons v Selsky, 238 AD2d 651). Due to petitioner’s failure to raise any objection to the Hearing Officer’s failure to question two inmates regarding their refusal to testify at the hearing, petitioner has not preserved this issue for our review (see, Matter of Kelly v Coughlin, 192 AD2d 897, 898, appeal dismissed, lv denied 82 NY2d 819). Petitioner’s remaining contentions, to the extent that they are preserved for our review, have been examined and found to be without merit.

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