Jordan v. Fischer

Jul 31, 2008
Versions:53 A.D.3d 1013
860 N.Y.S.2d 922

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to introduce drugs into the facility and soliciting others to smuggle. Following a tier III disciplinary hearing, petitioner was found guilty as charged. Upon administrative appeal, that determination was affirmed with a modified penalty. This CPLR article 78 proceeding seeking annulment ensued.

We confirm. Contrary to petitioner’s assertion, the determination of guilt is supported by substantial evidence consisting of the misbehavior report, confidential information and testimony adduced at the hearing (see Matter of Hernandez v Selsky, 50 AD3d 1340, 1341 [2008]). Petitioner’s denial of the allegations created a credibility issue for resolution by the Hearing Officer (see Matter of Brown v Selsky, 49 AD3d 1108, 1108 [2008]). We have reviewed petitioner’s remaining contentions, including his claim that he was denied the right to present witness testimony, and, to the extent preserved, find them to be unavailing.

Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.