| Matter of Pagan v Selsky |
| 2007 NY Slip Op 09147 [45 AD3d 1120] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Omar Pagan, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 a prison disciplinary rule.
Petitioner, an inmate, was charged in a misbehavior report with illicit drug use. Following atier III disciplinary hearing, he was found guilty of that charge. After exhausting hisadministrative remedies, petitioner commenced this CPLR article 78 proceeding challenging thedetermination.
We confirm. The misbehavior report, positive urinalysis test results and hearing testimonyprovide substantial evidence of petitioner's guilt (see Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lvdenied 8 NY3d 816 [2007]; Matterof Silverstein v Selsky, 32 AD3d 1100, 1100 [2006]). Petitioner's exculpatoryexplanations attempting to undermine and/or explain away the positive drug test createdcredibility issues for resolution by the Hearing Officer (see Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). As forpetitioner's claims of hearing officer bias and inadequate employee assistance, they have not beenpreserved for our review (see Matter of Torres v Coombe, 234 AD2d 710, 710 [1996]).In any event, those claims, along with petitioner's remaining contentions, have been examinedand found to be unavailing.[*2]
Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.