| Matter of Donhauser v Prack |
| 2009 NY Slip Op 01564 [60 AD3d 1126] |
| March 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of David Donhauser, Petitioner, v Albert Prack, asActing Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
Petitioner was charged in a misbehavior report with providing false information andimpersonation after he submitted two requests for law library materials, one in his name and onein his then cellmate's name. A tier III hearing ensued, at the conclusion of which the HearingOfficer found petitioner guilty and imposed a penalty. Following an unsuccessful administrativeappeal, petitioner commenced this proceeding pursuant to CPLR article 78 to challenge thedetermination of guilt.
We confirm. The misbehavior report together with petitioner's admission that he authoredand submitted two separate requests for law library materials under two different namesconstitute substantial evidence to support the finding of guilt (see Matter of Lebron v McGinnis, 26AD3d 658, 658 [2006], lv denied 7 NY3d 704 [2006]). To the extent that petitionercontends that he merely was attempting to assist his cellmate, as opposed to improperlyobtaining more [*2]law library materials than the relevant rulespermitted, this presented a credibility determination for the Hearing Officer to resolve (see Matter of Diaz v Smith, 54 AD3d1080, 1081 [2008]). Petitioner's remaining arguments are either unpreserved for our reviewor are lacking in merit.
Cardona, P.J., Peters, Kane, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.