| Matter of Butler v Selsky |
| 2008 NY Slip Op 02728 [49 AD3d 1122] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Ricky Butler, 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 search of petitioner's prison cell, a correction officer discovered a broken razor witha missing blade, which blade had been removed and hidden inside some paperwork. As aconsequence, petitioner was charged in a misbehavior report with altering state property,possessing an altered item and destroying state property. At the conclusion of a tier IIIdisciplinary hearing, petitioner was found guilty of all three charges. That determination wasaffirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78proceeding.
We confirm. The misbehavior report, together with the testimony of the correction officerwho performed the cell search and authored the report, provide substantial evidence to supportthe determination of guilt (see Matter ofDavis v Goord, 34 AD3d 1027, 1027 [2006]). Petitioner's exculpatory statements,including his claim that he accidentally broke the razor by stepping on it, presented a credibilityissue for resolution by the Hearing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007]).Regarding deficiencies in the hearing [*2]transcript, they are notso significant as to preclude meaningful review by this Court (see Matter of Lewis v Goord, 43 AD3d 1223, 1224 [2007]).Finally, petitioner's contention that the Hearing Officer failed to assess his mental health status isunpreserved for our review given petitioner's failure to raise it at the disciplinary hearing (seeMatter of Spirles v Goord, 308 AD2d 610, 611 [2003]).
Cardona, P.J., Carpinello, Rose, Lahtinen and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.