Vigliotti v. Bell

52 A.D.3d 1064, 860 N.Y.S.2d 288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 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 Superintendent of Clinton Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II prison disciplinary hearing, petitioner was found guilty of creating a disturbance, refusing a direct order, making threats and engaging in harassing behavior. As a result, a penalty of 30 days in keeplock and a corresponding loss of privileges was imposed. The determination was administratively affirmed and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The misbehavior report, together with the hearing testimony of the correction officer who authored it, provide substantial evidence to support the determination of guilt (see Matter of Rodriguez v Selsky, 48 AD3d 851, 852 [2008]). To the extent that petitioner and other inmate witnesses offered contradictory testimony, credibility issues were created for resolution by the Hearing Officer (see Matter of Rosa v Brown, 47 AD3d 1142, 1143 [2008]). Petitioner’s assertion that the Hearing Officer was biased is not substantiated by the record, and there is no indication that the determination flowed from any purported bias (see Matter of Kirby v Leclaire, 47 AD3d 1174, 1175 [2008]). We have reviewed petitioner’s remaining contentions, including his claims that his mental health was not properly considered and the penalty imposed was excessive, and find them to be unavailing.

Mercure, J.P, Peters, Carpinello, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.