Rojas v. Selsky

55 A.D.3d 1189, 865 N.Y.S.2d 584, 56 A.D.2d 911, 868 N.Y.S.2d 324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 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 a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of the prison disciplinary rule prohibiting lewd exposure. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The misbehavior report, together with the corroborating hearing testimony from the library clerk who authored it, constitute substantial evidence to support the determination of guilt (see Matter of Taylor v Caldwell, 51 AD3d 1234, 1234 [2008]). Petitioner’s exculpatory statements created credibility issues for resolution by the Hearing Officer (see Matter of Gawlik v Fischer, 50 AD3d 1282, 1283 [2008]). To the extent preserved, petitioner’s remaining contentions, including his claim that he was denied the right to present witness testimony, have been considered and found to be unavailing.

Cardona, EJ., Peters, Rose, Malone Jr. and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.