| Matter of McCloud v Selsky |
| 2007 NY Slip Op 09153 [45 AD3d 1127] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kirtland McCloud, 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.
During an investigation, a correction officer discovered evidence indicating that petitionerwas using another inmate's personal identification number to make telephone calls to thatinmate's mother and that he was in possession of gambling paraphernalia. As a result, petitionerwas charged in a misbehavior report with gambling, exchanging personal identification numbersand extortion. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty ofthe first two charges but not guilty of the third charge. The determination was affirmed onadministrative appeal with a modified penalty. Petitioner then commenced this CPLR article 78proceeding.
We confirm. Initially, we note that although portions of the hearing transcript are [*2]inaudible and others appear to be out of order, it is not soincomprehensible or incomplete as to preclude meaningful review (see Matter of Frazier v Artus, 40 AD3d1288, 1288 [2007]; Matter ofMcIver v Goord, 37 AD3d 943, 944 [2007]). Turning to the merits, the misbehaviorreport, together with the testimony of the correction officer who prepared it, provide substantialevidence supporting the determination of guilt (see Matter of Rosario v Selsky, 37 AD3d 921, 921 [2007]; Matter of McEwen v Goord, 32 AD3d1116, 1117 [2006]). Petitioner's testimony that he spoke with the inmate's mother during atelephone call made by that inmate using his own personal identification number and that he didnot possess gambling materials presented a credibility issue for the Hearing Officer to resolve (see Matter of Spulka v Selsky, 36AD3d 1183, 1184 [2007]). His remaining contentions have not been preserved for ourreview.
Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.