Harris v. Fletcher

Jun 29, 2006
Versions:30 A.D.3d 948
819 N.Y.S.2d 311

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 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 violating the prison disciplinary rule that prohibits the loss of state property because he was not in possession of his state-issued razor. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

The misbehavior report, the razor issue log and memorandum from the author of the misbehavior report provide substantial evidence to support the determination of guilt (see Matter of Hemphill v Selsky, 26 AD3d 548 [2006]). Although petitioner testified that he surrendered the razor prior to leaving the correctional facility for the court appearance, this evidence, which conflicted with the information in the memorandum and razor log, presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v Ricks, 303 AD2d 860, 861 [2003]; Matter of Knowles v Coombe, 236 AD2d 659 [1997]).

Contrary to petitioner’s contention, the record establishes that the determination of guilt was a result of the evidence presented and not from any alleged bias on the part of respondent Hearing Officer (see Matter of Costello v Smith, 26 AD3d 566 [2006]). To the extent that petitioner claims that he was precluded from introducing documentary evidence in support of his defense, the issue is raised for the first time in this proceeding and, therefore, it is not preserved for our review (see Matter of Horton v Allard, 25 AD3d 1048 [2006]). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.