| Matter of LaFontant v Fischer |
| 2008 NY Slip Op 04803 [51 AD3d 1347] |
| May 29, 2008 |
| Appellate Division, Third Department |
| In the Matter of Anthony LaFontant, Petitioner, v Brian Fischer, 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 a prison disciplinary rule.
After a female correction officer observed petitioner sitting on his bed and masturbating withhis penis exposed, petitioner was charged in a misbehavior report with violating the prisondisciplinary rule prohibiting lewd conduct. A tier III disciplinary hearing ensued, at theconclusion of which petitioner was found guilty as charged. That determination wasadministratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the hearing testimony from the authoringcorrection officer, constitute substantial evidence to support the determination of guilt (see Matter of Rodriguez v Selsky, 47AD3d 1173, 1173 [2008]). Petitioner's assertion that he was not masturbating but, instead,was providing himself with massage therapy for certain medical conditions created a credibilityissue for resolution by the Hearing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007],lv denied 10 NY3d 702 [2008]). Petitioner's remaining contentions, including his claimthat he was denied the right to present witness testimony, have been examined and, to the extentpreserved, are unavailing.[*2]
Cardona, P.J., Spain, Carpinello, Kane and Stein, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.