Dozier v. Selsky , 864 N.Y.S.2d 188 ( 2008 )

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.

In connection with the search of his cell, petitioner was charged in two misbehavior reports with numerous prison disciplinary rule violations. The first report indicated that petitioner refused a correction officer’s directive to stand in a certain location so that the search could proceed and struck the officer with a clenched fist resulting in a struggle that ended with petitioner being placed in restraints. The report charged him with refusing a direct order, assaulting staff and engaging in violent conduct. The second report related that, during the cell search, items consisting of, among other things, a toothbrush with a sharpened handle and latex glove fingers filled with tobacco and rolling papers were recovered. That report charged him with possessing a weapon, possessing contraband, possessing an altered item and smuggling. A tier III disciplinary hearing on the charges contained in both misbehavior reports was subsequently conducted. At the conclusion of the hearing, petitioner was found guilty of all of the charges, except for possessing contraband. After the determination was affirmed on administrative appeal, he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior reports, hearing testimony and documentary evidence provide substantial evidence supporting the determination of guilt (see Matter of Lopez v Goord, 49 AD3d 1044, 1045 [2008], Iv denied 11 NY3d 703 [2008]; Matter of Green v Goord, 26 AD3d 562, 563 [2006]). Petitioner’s contrary testimony and that of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht v Goord, 47 AD3d 1030 [2008], appeal dismissed 10 NY3d 954 [2008]; Matter of Thomas v Goord, 34 AD3d 1143, 1144 [2006]). His remaining contentions are either unpreserved for our review or are lacking in merit.

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