| Matter of Dalrymple v Fischer |
| 2009 NY Slip Op 06092 [65 AD3d 725] |
| August 6, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gejuane Dalrymple, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following a search of petitioner's cell during which correction officers discovered threeplastic dice, 96 postage stamps and four tablets of prescription ibuprofen, he was served with amisbehavior report. A tier III disciplinary proceeding ensued, after which petitioner was foundguilty of possessing unauthorized medication, unauthorized property and gamblingparaphernalia. That determination was upheld on administrative appeal, after which petitionercommenced this CPLR article 78 proceeding. We now confirm.
Petitioner's lone contention is that his determination must be annulled because he wasimproperly denied the right to be present during the search of his cell pursuant to Department ofCorrectional Services Directive No. 4910 § V-C-1 (see Matter of Vines v Goord, 19 AD3d 951, 952 [2005]; Matterof Holloway v Lacy, 263 AD2d 740, 741 [1999]).[FN*]We find petitioner's [*2]argument unavailing, inasmuch as theofficer who conducted the search of petitioner's cell testified that the door was left open duringthe search and petitioner, although asked to leave the cell, was not directed to leave theimmediate vicinity. Petitioner and another inmate testified to the contrary, presenting an issue ofcredibility for the Hearing Officer to resolve (see Matter of Vines v Goord, 19 AD3d at952; Matter of Smith v Selsky, 294 AD2d 629, 630 [2002]).
Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: Although this proceedingappears to have been improperly transferred inasmuch as petitioner does not raise an issue ofsubstantial evidence, we shall retain jurisdiction and address the merits of petitioner's claim inthe interest of judicial economy (seeMatter of Burgess v Selsky, 50 AD3d 1347, 1348 [2008]).