| Matter of Armstrong v Phillips |
| 2007 NY Slip Op 07695 [44 AD3d 759] |
| October 9, 2007 |
| Appellate Division, Second Department |
| In the Matter of Edward Armstrong, Petitioner, v WilliamE. Phillips, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and DavidLawrence III of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the New York StateDepartment of Correctional Services dated April 7, 2005, which affirmed a determination of ahearing officer dated April 5, 2005, made after a Tier II disciplinary hearing, finding that thepetitioner had violated institutional rules, and imposing penalties.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, without costs or disbursements.
Contrary to the petitioner's contention, the determination that he violated institutional rulesby stealing state property from the prison commissary where he worked was supported bysubstantial evidence (see Matter of Lahey v Kelly, 71 NY2d 135, 140 [1987]; Peopleex rel. Vega v Smith, 66 NY2d 130, 139 [1985]; cf. People v Olivo, 52 NY2d 309,318-320 [1981]). The petitioner's testimony at the disciplinary hearing that his intent was not tosteal the property, but merely to set it aside for later purchase by an acquaintance, presented acredibility issue, the resolution of which was within the province of the hearing officer (seeMatter of Perez v Wilmot, 67 NY2d 615, 617 [1986]; Matter of Griffin v Goord, 43 AD3d 591 [2007]; Matter ofRivera v Selsky, 266 AD2d 295, 295 [1999]). Accordingly, we perceive no reason to disturbthe determination.[*2]
The petitioner's remaining contentions are without merit.Crane, J.P., Florio, Lifson and Carni, JJ., concur.