| Matter of Wilson v Goord |
| 2008 NY Slip Op 00322 [47 AD3d 1102] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Derrick Wilson, 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.
After a search of petitioner's prison cell recovered a piece of metal flashing that appeared tohave been removed from a part of the cell and was sharpened to a point at one end, he wascharged in a misbehavior report with possession of a weapon, possession of an altered item anddestruction of state property. At the conclusion of the ensuing tier III disciplinary hearing,petitioner was found guilty of possessing a weapon and possessing an altered item, but not guiltyof destroying state property. That determination was affirmed upon administrative appeal,prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. Contrary to petitioner's assertion, the detailed misbehavior report, together withthe testimony adduced at the hearing, comprise substantial evidence to support the determinationof guilt (see Matter of Lewis vGoord, 43 AD3d 1259, 1259 [2007]; Matter of Fontaine v Superintendent of Southport Correctional Facility,35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943 [2007]). To theextent that petitioner alleged that the object in question may have been planted in his cell bysomeone else, a credibility issue was created for resolution by the Hearing Officer (see Matter of Stolpinski v New York StateDept. of [*2]Correctional Servs., 32 AD3d 1091, 1091[2006]). As for petitioner's contention that he was denied the right to call an inmate witness totestify at the hearing, the inmate executed a written refusal form indicating that he had noknowledge concerning the matter (seeMatter of McAllister v Goord, 42 AD3d 765, 765 [2007]), appeal dismissed 9NY3d 976 [2007]). We have examined petitioner's remaining claims and find them to beunavailing.
Mercure, J.P., Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.