| Matter of Bailey v Burge |
| 2008 NY Slip Op 01052 [48 AD3d 854] |
| February 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of Edward Bailey, Petitioner, v John Burge, asSuperintendent of Elmira Correctional Facility, 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.
A search of petitioner's prison cell discovered two wires running along the floor which wereconcealed by some form of glue and paint. As a result, petitioner was charged in a misbehaviorreport with possession of contraband, possession of property in an unauthorized area and misuseof state property. Following a tier II disciplinary hearing, petitioner was found guilty of allcharges. That determination was affirmed upon administrative appeal and this CPLR article 78proceeding ensued.
We confirm. The determination of guilt is supported by substantial evidence in the form ofthe misbehavior report and related photograph, along with the hearing testimony from thecorrection officer who issued the report (see Matter of Ford v Smith, 23 AD3d 874, 875 [2005], lvdenied 6 NY3d 708 [2006]). Petitioner's assertion that he did not possess the subject wirescreated a credibility issue for resolution by the Hearing Officer (see Matter of Rivera v Selsky, 43AD3d 1210, 1210 [2007]). Petitioner's remaining contentions, including his claim that hewas deprived of an impartial hearing, are unpreserved for our review (see Matter of Hamilton v [*2]Goord, 32 AD3d 642, 643 [2006], lv denied 7NY3d 715 [2006]).
Mercure, J.P., Spain, Lahtinen, Kane and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.