| Matter of Matthews v Goord |
| 2008 NY Slip Op 00146 [47 AD3d 1043] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of Luke Matthews, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
While petitioner was in the visiting room with his wife, a correction officer observed a largebulge in the left front pocket of petitioner's pants as he started walking toward the bathroom. Theofficer ordered petitioner to stop, but he proceeded to partially enter the bathroom. When heexited, he was pat frisked, but the bulge was gone. The bathroom had been searched shortlybefore petitioner's entry and was found to be clean. It was searched again after petitioner's exitand a grey balloon, which was later determined to contain hashish and heroin, was found floatingin the toilet. As a result, petitioner was charged in a misbehavior report with drug possession,smuggling, refusing a direct order and violating visiting room procedures. He was found guilty ofthe charges following a tier III disciplinary hearing and various penalties were imposed,including the revocation of visitation privileges with his wife. The determination was affirmed onadministrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, documentary evidence and testimony of correctionofficers present during the incident provide substantial evidence supporting the determination ofguilt (see Matter of Coleman vSelsky, 40 AD3d 1328, 1329 [2007]; Matter of [*2]Martino v Goord, 38AD3d 958, 958 [2007]). Petitioner's testimony that the contraband was left in the bathroomby an unidentified inmate who used it before him was contradicted by correction officers and, inany event, presented a credibility issue for the Hearing Officer to resolve (see Matter of Thompson v Goord, 37AD3d 914, 914 [2007]). Furthermore, we find no error in the confinement of petitioner tothe special housing unit pending the outcome of the disciplinary hearing (see 7 NYCRR301.3 [a] [1]) or in the revocation of visitation privileges with his wife (see 7 NYCRR200.4 [b]; 200.5 [a]).
Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.