Matter of Levy v Goord

2005 NYSlipOp 07766

October 20, 2005

Appellate Division, Third Department

In the Matter of Ronald Levy, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

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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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order and failing to comply with urinalysis procedures after he failed to provide a urine sample within three hours of being ordered to do so. Contrary to petitioner's contention, the misbehavior report, documentary evidence and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Infante v Selsky, 21 AD3d 633 [2005]). Although petitioner asserts that he was not given the full three hours in which to provide a urine sample (see 7 NYCRR 1020.4 [d] [4]), the conflicting testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Nimmons v Goord, 7 AD3d 887, 888 [2004]; Matter of Williams v Ricks, 303 AD2d 860, 861 [2003]). Petitioner's remaining contentions, including his challenge to the videotape evidence and claim of hearing officer bias, have been reviewed and found to be without merit.

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