| Matter of Tafari v Selsky |
| 2007 NY Slip Op 09160 [45 AD3d 1139] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Injah Tafari, Petitioner, v Donald Selsky,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan 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 disciplinary rules.
During a search of petitioner's cell, a number of items were recovered, including a tornstate-issued sheet. When petitioner was returned to his cell following the search, he threatened acorrection officer with physical violence. As a result, petitioner was charged in a misbehaviorreport with possessing excess property, possessing property in an unauthorized area, damagingstate property and making threats. Following a tier III disciplinary hearing, he was found guilty ofthe latter two charges and the determination was affirmed on administrative appeal. This CPLRarticle 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony at the hearing, providesubstantial evidence supporting the determination of guilt (see Matter of Fontaine v [*2]Superintendentof Southport Correctional Facility, 35 AD3d 1113, 1114 [2006], appealdismissed 8 NY3d 943 [2007]; Matter of Johnson v Goord, 28 AD3d 882, 882 [2006]). Petitioner'scontrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Accardi v Goord, 34AD3d 945, 946 [2006]). Additionally, we find no error in the Hearing Officer's failure tomake further inquiry regarding petitioner's mental capacity inasmuch as it was not placed in issuepursuant to the governing regulations (see 7 NYCRR 254.6 [b] [1]) and petitioner did notexhibit any signs of mental impairment at the disciplinary hearing. Petitioner's remainingcontentions have been examined and are without merit. We, therefore, decline to disturb thedetermination of guilt.
Cardona, P.J., Spain, Carpinello, Mugglin and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.