| Matter of Dozier v Selsky |
| 2008 NY Slip Op 06758 [54 AD3d 1074] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Neron Dozier, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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.
In connection with the search of his cell, petitioner was charged in two misbehavior reportswith numerous prison disciplinary rule violations. The first report indicated that petitionerrefused a correction officer's directive to stand in a certain location so that the search couldproceed and struck the officer with a clenched fist resulting in a struggle that ended withpetitioner being placed in restraints. The report charged him with refusing a direct order,assaulting staff and engaging in violent conduct. The second report related that, during the cellsearch, items consisting of, among other things, a toothbrush with a sharpened handle and latexglove fingers filled with tobacco and rolling papers were recovered. That report charged him withpossessing a weapon, possessing contraband, possessing an altered item and smuggling. A tier IIIdisciplinary hearing on the charges contained in both misbehavior reports was subsequentlyconducted. At the conclusion of the hearing, petitioner was found guilty of all of the charges,except for possessing contraband. After the determination was affirmed on administrative appeal,he commenced this CPLR article 78 proceeding.[*2]
We confirm. The misbehavior reports, hearing testimonyand documentary evidence provide substantial evidence supporting the determination of guilt (see Matter of Lopez v Goord, 49 AD3d1044, 1045 [2008], lv denied 11 NY3d 703 [2008]; Matter of Green v Goord, 26 AD3d562, 563 [2006]). Petitioner's contrary testimony and that of his inmate witnesses presenteda credibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht v Goord, 47 AD3d 1030 [2008], appealdismissed 10 NY3d 954 [2008]; Matter of Thomas v Goord, 34 AD3d 1143, 1144 [2006]). Hisremaining contentions are either unpreserved for our review or are lacking in merit.
Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.