Petillo v. Coughlin

187 A.D.2d 769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1992
• Status: Published

Opinion

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

We reject petitioner’s argument that the determination that he violated prison rule 114.10 prohibiting smuggling was riot supported by substantial evidence. Petitioner admitted exchanging footwear with a visitor in the visiting area. The misbehavior report states that petitioner also ádmitted to the author of the report that the shoes had previously been denied petitioner through the package room. Frorii these facts the Hearing Officer could reasonably infer that petitioner intended to smuggle the exchanged footwear into the facility (cf., Matter of Hernandez v LeFevre, 150 AD2d 954,. lv denied 74 NY2d 615). Petitioner’s claim of innocence merely raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Caldwell v Coughlin, 148 AD2d 905). Finally, we agree with respondents that the administrative dismissal of one of the two smuggling charges originally brought against petitioner does not require remittal for administrative reconsideration of the penalty imposed because petitioner hás already served his sentence in the special housing unit and there was no recommended loss of good time (see, Matter of Tumminia v Coughlin, 175 AD2d 383, 385).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.