Wesolowski v. Donahue

45 A.D.3d 1224, 845 N.Y.S.2d 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2007
• Status: Published

Opinion

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

Following a tier II disciplinary hearing, petitioner was found guilty of providing unauthorized legal assistance. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, corroborating hearing testimony from the correction officer who authored it and the handwriting sample constitute substantial evidence to support the determination of guilt (see Matter of Santana v Selsky, 23 AD3d 722, 723 [2005]). Petitioner’s denial of the charge created a credibility issue for resolution by the Hearing Officer (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).

Petitioner’s remaining contentions, including his claims that he was not afforded an impartial hearing and the misbehavior report was fatally deficient and issued as a means of retaliation, have been examined and found to be unavailing.

Cardona, P.J., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.