| Matter of Batts v Fischer |
| 2009 NY Slip Op 01566 [60 AD3d 1129] |
| March 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Javares Batts, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rulesthat prohibit smuggling and possession of a controlled substance after a search of his celldisclosed a green leafy substance that later tested positive for marihuana. Following a tier IIIdisciplinary hearing, petitioner was found guilty and a penalty was imposed. Petitioner'sadministrative appeal was unsuccessful, prompting him to commence this proceeding pursuant toCPLR article 78 to challenge respondent's determination.
The misbehavior report, together with the contraband receipt and the hearing testimony,constitute substantial evidence of petitioner's guilt (see Matter of Pulliam v Goord, 45 AD3d 1158, 1158 [2007]; Matter of Rios v Selsky, 32 AD3d632, 633 [2006]). To the extent that petitioner contended that the drugs were not his and hadbeen planted by facility personnel, his assertions presented a credibility issue for the HearingOfficer to resolve (see Matter ofYancey v Conway, 46 AD3d 1042 [2007]; Matter of Diaz v Goord, 26 AD3d 561, 562 [2006]). In light of thehearing testimony and contraband receipt, which established that the cell was searched and freeof contraband prior to petitioner's entry, the failure to record the search in the [*2]relevant log book does not warrant annulment (see Matter of Chapman v Goord, 49AD3d 944, 945 [2008]). Petitioner's remaining contentions, including his assertion that hisadministrative appeal was not decided in a timely fashion, have been examined and found to belacking in merit.
Mercure, J.P., Rose, Kane, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.