| Matter of Rivera v Selsky |
| 2007 NY Slip Op 06598 [43 AD3d 1210] |
| September 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Richard Rivera, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was found guilty at the conclusion of a tier III disciplinary hearing of extortion andmaking threats. Following an unsuccessful administrative appeal, petitioner commenced thisCPLR article 78 proceeding challenging the determination.
We confirm. The determination of guilt is supported by substantial evidence in the form ofthe misbehavior report and testimony adduced at the hearing (see Matter of Fontaine v Superintendent of Southport CorrectionalFacility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943[2007]). Although the correction officer who authored the misbehavior report did not actuallywitness the incident in question, he investigated the matter and was able to ascertain theunderlying facts (see Matter of Mendezv Goord, 21 AD3d 1191, 1192 [2005]). Petitioner's denial that the incident occurredcreated a credibility issue for resolution by the Hearing Officer (see Matter of Ramirez v Goord, 32AD3d 601, 601 [2006]). Finally, we reject petitioner's contention that he was improperlydenied the right to call a character witness (see [*2]Matter ofKrivoi v Selsky, 284 AD2d 677, 678 [2001]).
Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.