| Matter of Garner v Selsky |
| 2008 NY Slip Op 00583 [47 AD3d 1167] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of John Garner, 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 a telephone conversation with his wife, petitioner requested that she bring him somemarihuana when visiting him. Consequently, he was charged in a misbehavior report withconspiracy to possess drugs, attempted smuggling and a violation of the facility telephoneprogram. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was foundguilty of all charges. That determination was affirmed upon administrative appeal, promptingpetitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, accompanying documentation, hearing testimony andconfidential information comprise substantial evidence to support the determination of guilt (see Matter of Sowell v Selsky, 43AD3d 1226, 1226 [2007]; Matter ofReddick v Goord, 43 AD3d 503, 503 [2007]). To the extent that petitioner denied theallegations, a credibility issue was created for resolution by the Hearing Officer (see Matter of Rivera v Selsky, 43AD3d 1210, 1210 [2007]). Petitioner's remaining contentions, including his claims that hewas improperly denied the right to call witnesses and deprived of an impartial hearing, have beenexamined and [*2]found to be unavailing.
Cardona, P.J., Peters, Spain, Carpinello and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.