| Matter of Rodriguez v Selsky |
| 2008 NY Slip Op 03354 [50 AD3d 1337] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Guillermo Rodriguez, Petitioner, v Donald Selsky,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating visiting room procedures andfailing to obey a direct order. The charges stemmed from an incident wherein petitioner engagedin inappropriate physical contact with a female visitor. A tier III disciplinary hearing ensued, atthe conclusion of which petitioner was found guilty of the charges and a penalty was imposed.Following an unsuccessful administrative appeal, petitioner commenced this proceeding seekingto annul the underlying determination.
Preliminarily, respondent concedes and our review of the record confirms that there isinsufficient evidence to support the charge that petitioner disobeyed a direct order. Accordingly,that portion of the determination is annulled.[FN*][*2]
We reach a contrary conclusion regarding the charge thatpetitioner violated visiting room procedures. The misbehavior report and the testimony adducedat the hearing constitute substantial evidence to support the finding that petitioner engaged ininappropriate physical contact with his visitor (see Matter of Mealer v Selsky, 290 AD2d778, 778-779 [2002]). Notably, petitioner was warned regarding that very conduct the day beforethe incident giving rise to the misbehavior report (see id. at 778). To the extent thatpetitioner denied the conduct and/or argued that the reporting officer's view was obstructed, suchtestimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Retamozzo v New York StateDept. of Correctional Servs., 31 AD3d 1083, 1084 [2006]). As for petitioner's assertionthat the visit was terminated prematurely, we need note only that the alleged proceduralinfirmities cited by petitioner in no way negate his underlying conduct. Petitioner's remainingarguments, including his claim of hearing officer bias, have been examined and found to belacking in merit.
Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof disobeying a direct order; petition granted to that extent and the Commissioner of CorrectionalServices is directed to expunge all references thereto from petitioner's institutional record; and, asso modified, confirmed.
Footnote *: Inasmuch as petitioner hasserved his administrative penalty and there was no recommended loss of good time, we need notremit this matter for a redetermination of the penalty imposed (see Matter of Wan Zhang v Murphy, 1AD3d 784 [2003]).