| Matter of Diaz v Smith |
| 2008 NY Slip Op 06764 [54 AD3d 1080] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jose Diaz, Petitioner, v James T. Smith, asSuperintendent of Shawangunk Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
During a confidential investigation, an inmate disclosed that petitioner had given himmarihuana in exchange for cigarettes and had threatened him when he was unable to pay off theremainder of the debt that he owed to petitioner. Petitioner was charged in a misbehavior reportwith making threats and possessing a controlled substance. He was found guilty of the chargesfollowing a tier III disciplinary hearing. The determination was later affirmed on administrativeappeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. Initially, we find no merit to petitioner's claim that the proper hearing transcripthas not been provided for this Court's review inasmuch as this defect was remedied byrespondents' supplementation of the record with the correct transcript. Turning to the merits, themisbehavior report, hearing testimony and confidential information considered by the HearingOfficer in camera provide substantial evidence supporting the determination of guilt (see Matter of Vassell v Fischer, 48AD3d 876 [2008]; Matter ofJackson v McGinnis, 47 AD3d 1100, 1101[*2][2008]).Petitioner's denial of any wrongdoing presented a credibility issue for the Hearing Officer toresolve (see Matter of Sweet vPoole, 48 AD3d 867, 867-868 [2008]; Matter of Garner v Selsky, 47 AD3d 1167 [2008]). Therefore, wedecline to disturb the determination of guilt.
Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.