Matter of Spulka v Goord

2004 NYSlipOp 08771

November 24, 2004

Appellate Division, Third Department

In the Matter of Kenneth Spulka, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit smuggling, interference with an employee, refusing a direct order and failure to comply with frisk procedures. Contrary to petitioner's contention, the misbehavior report and corroborating testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Williams v Goord, 308 AD2d 614, 615 [2003]), despite the fact that no contraband was found. Petitioner's version of the underlying events created a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v Goord, 298 AD2d 737, 738 [2002]; Matter of McBride v Selsky, 257 AD2d 930 [1999]).

Petitioner's remaining claims that he was improperly denied the right to call a witness and was subjected to hearing officer bias have been reviewed and found to be without merit.

Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. [*2]Adjudged that the determination is confirmed, without costs, and petition dismissed.