Pena v. Selsky

53 A.D.3d 938, 861 N.Y.S.2d 532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 24, 2008
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit lewd exposure and harassment. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged and a penalty was imposed. Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the underlying determination.

The misbehavior report, together with the testimony of the authoring correction officer and petitioner’s admission that he was unclothed and rubbing lotion on his body at the time of the incident, provide substantial evidence to support the determination (see Matter of LaFontant v Fischer, 51 AD3d 1347 [2008]; Matter of Abreu v Goord, 38 AD3d 994 [2007]; Matter of Donato v Duncan, 272 AD2d 768, 768-769 [2000]). To the extent that petitioner asserts that the testimony offered by the authoring correction officer was inconsistent or that her view of his cube was obstructed and, hence, she could not have seen the offending conduct, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v Goord, 36 AD3d 1033 [2007]; Matter of Smith v Goord, 275 AD2d 827, 828 [2000]). Petitioner’s remaining contentions, to the extent they are properly before us, have been examined and found to be lacking in merit.

Cardona, P.J., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.