Herrera-Martinez v. Selsky

May 2, 2002
Versions:294 A.D.2d 633
740 N.Y.S.2d 889
2002 N.Y. App. Div. LEXIS 4235

—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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was the subject of a misbehavior report which charged him with smuggling and conspiring to introduce narcotics into the correctional facility. At petitioner’s disciplinary hearing, an investigator from the Inspector General’s office testified that he had been investigating a woman known as Candy, who was suspected of transferring narcotics to inmates. As part of the investigation, he had monitored telephone calls made to Candy by petitioner during which he instructed her to obtain heroin and transfer it to another woman who would bring it into the facility. After her arrest, Candy admitted that she had received several calls from petitioner giving her instructions relating to the purchase and transfer of narcotics.

Petitioner was ultimately found guilty of both smuggling and *634conspiracy to introduce narcotics into the facility, a determination that was based upon substantial evidence in the form of the misbehavior report and the testimony of the investigator who authored it (see, Matter of Tumminia v Senkowski, 290 AD2d 902; Matter of Carota v Goord, 285 AD2d 676, 677, lv denied 97 NY2d 603). Petitioner’s testimony, in which he admitted telephoning Candy but denied that the conversations were drug-related, presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Lyde v Goord, 266 AD2d 615, 616). Petitioner’s remaining contentions have been examined and found to be without merit.

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