| Matter of Wade v Artus |
| 2009 NY Slip Op 01054 [59 AD3d 793] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Quincy Wade, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
A correction officer searched the light fixture in petitioner's prison cell and recovered asharpened metal rod with a handle and lanyard. As a result, petitioner was charged in amisbehavior report with possession of a weapon. Following a tier III disciplinary hearing,petitioner was found guilty as charged. Petitioner thereafter exhausted his administrativeremedies and commenced this CPLR article 78 proceeding seeking annulment.
We confirm. The misbehavior report, together with the related documentation, statementsmade by petitioner and hearing testimony from the correction officer who authored the report,comprise substantial evidence to support the determination of guilt (see Matter of Martinez v Selsky, 53AD3d 989, 989 [2008]). To the extent that petitioner asserted that the weapon must havealready been in the light fixture at the time that he moved into the cell, a credibility issue wascreated for resolution by the Hearing Officer (see Matter of Ubaldo v Leclaire, 46 AD3d 975, 975 [2007]). Wehave reviewed petitioner's remaining claims, including [*2]hiscontention that he was denied the right to present witness testimony, and discern no basis fordisturbing the determination in issue.
Peters, J.P., Spain, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.