| Matter of Hale v Selsky |
| 2008 NY Slip Op 09678 [57 AD3d 1136] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mIn the Matter of Michael S. Hale, 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 Supreme Court,entered in Albany County) to review a determination of the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner engaged in a verbal altercation with a correction sergeant while in the law library anddisregarded his directives to step out into the hallway and be quiet. As a result, he was charged in amisbehavior report with refusing a direct order, creating a disturbance and harassing an employee. Hewas found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determinationwas affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officer whoauthored it as well as the sergeant and another officer present at the scene, provide substantial evidencesupporting the determination of guilt (seeMatter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). The contrary testimony ofpetitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Vigliotti v Bell, 52 AD3d1064 [2008]; Matter of Rodriguez vSelsky, 47 AD3d 1173, 1173 [2008]). We have examined petitioner's claims that he wasimproperly denied the right to present witnesses and certain [*2]documentary evidence and find them to be lacking in merit. Therefore,we decline to disturb the determination at issue.
Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.