| Matter of Excell v Goord |
| 2006 NYSlipOp 09096 |
| December 7, 2006 |
| Appellate Division, Third Department |
| In the Matter of Mortimer Excell, 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 Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Following a tier III disciplinary hearing, petitioner was found guilty of possession of a controlled substance in violation of a prison disciplinary rule. That determination was upheld on administrative appeal and petitioner commenced this CPLR article 78 proceeding challenging it.
We confirm. The testimony of the correction officer who conducted the pat frisk of petitioner and witnessed him throw two marihuana cigarettes to the ground, together with the positive NIK drug test results, constitute substantial evidence to support the determination of guilt (see Matter of Rampersant v Selsky, 32 AD3d 1085 [2006]; Matter of Costner v Goord, 31 AD3d 1082, 1083 [2006]; Matter of Rodriguez v Goord, 18 AD3d 1081 [2005]). Petitioner's claim that the information in the misbehavior report, the supporting memoranda and the correction officer's hearing testimony was inconsistent and, thus, likely falsified created a credibility issue for the Hearing Officer to resolve (see Matter of Harris v Fletcher, 30 AD3d 948, 948 [2006]; Matter of Lopez v Selsky, 28 AD3d 968 [2006]). Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.[*2]
Peters, J.P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.