Wheeler v. Goord

297 A.D.2d 402, 746 N.Y.2d 89, 746 N.Y.S.2d 89, 2002 N.Y. App. Div. LEXIS 7776

Opinion

Petitioner was charged in a misbehavior report with possession of stolen property and smuggling after a correction officer obtained information that petitioner had taken a tape deck from the office of the recreation supervisor and given it to another inmate. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and he commenced the instant CPLR article 78 proceeding challenging this determination.

Contrary to petitioner’s claim, we find that the determination is supported by substantial evidence. The correction officer who testified at the hearing stated that she received information from confidential sources that petitioner had taken the tape deck from the recreation supervisor’s office. The testimony provided by the confidential informants, whose reliability was adequately assessed by the Hearing Officer, confirmed the facts contained in the misbehavior report (see, Matter of Salahuddin v Selsky, 293 AD2d 900; Matter of Ruiz v Goord, 289 AD2d 810). Although petitioner denied taking the tape deck, this presented a credibility issue for the Hearing Officer to resolve (see, Matter of Jackson v Selsky, 288 AD2d 802; Matter of Santiago v Selsky, 288 AD2d 732). The fact that the tape deck was not found in petitioner’s possession does not negate his guilt of the charges.

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