| Matter of Jackson v Smith |
| 2008 NY Slip Op 01884 [49 AD3d 933] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Lavogia Jackson, Petitioner, v Joseph T. Smith, asSuperintendent of Shawangunk Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Following a tier II disciplinary hearing, petitioner was found guilty of disobeying a directorder, being out of place and leaving an assigned area without authorization. Upon administrativeappeal, the charge of disobeying a direct order was dismissed, but the determination wasotherwise affirmed and the penalty imposed was not modified. This CPLR article 78 proceedingensued.
Contrary to petitioner's contentions, the misbehavior report and the hearing testimony of thecorrection officer who authored it provide substantial evidence to support the determinationfinding him guilty of being out of place and leaving an assigned area without authorization (see Matter of Galdamez v Goord, 43AD3d 1237, 1238 [2007]; Matter ofBrown v Katz, 26 AD3d 559, 559 [2006]). Petitioner's contrary testimony created acredibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht v Goord, 47 AD3d 1030 [2008]), as didhis claim that the charges were issued in retaliation for a grievance he had filed (see Matter of Porter v Goord, 47 AD3d978, 979 [2008]).
Petitioner's remaining claims, including his claim that the hearing was not timely completed,have been reviewed and found to be without merit.
Cardona, P.J., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.