| Matter of Credle v Selsky |
| 2007 NY Slip Op 09649 [46 AD3d 989] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kevin Credle, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 failed to produce a urine specimen within the three-hour time period allotted afterbeing instructed to do so by a correction officer. As a result, he was charged in a misbehaviorreport with refusing a direct order and failing to comply with urinalysis testing procedures.Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, documentary evidence and testimony at the hearingprovide substantial evidence supporting the determination of guilt (see Matter of Levy v Goord, 22 AD3d929 [2005]). While petitioner maintained that he suffered from a medical condition thatrendered him incapable of producing a specimen, this presented a credibility issue for theHearing Officer to resolve (see id. at 929-930) and, in any event, was not substantiated bythe medical testimony given at the hearing. Therefore, we find no reason to disturb thedetermination of guilt.[*2]
Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen,JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.