Diaz v. Smith

Sep 11, 2008
Versions:54 A.D.3d 1080
864 N.Y.S.2d 193

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

During a confidential investigation, an inmate disclosed that petitioner had given him marihuana in exchange for cigarettes and had threatened him when he was unable to pay off the remainder of the debt that he owed to petitioner. Petitioner was charged in a misbehavior report with making threats and possessing a controlled substance. He was found guilty of the charges following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Initially, we find no merit to petitioner‘s claim that the proper hearing transcript has not been provided for this Court‘s review inasmuch as this defect was remedied by respondents’ supplementation of the record with the correct transcript. Turning to the merits, the misbehavior report, hearing testimony and confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Vassell v Fischer, 48 AD3d 876 [2008]; Matter of Jackson v McGinnis, 47 AD3d 1100, 1101 [2008]). Petitioner‘s denial of any wrongdoing presented a credibility issue for the Hearing Officer to resolve (see Matter of Sweet v Poole, 48 AD3d 867, 867-868 [2008]; Matter of Garner v Selsky, 47 AD3d 1167 [2008]). Therefore, we decline to disturb the determination of guilt.

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