| Matter of Morales v Dubray |
| 2009 NY Slip Op 03813 [62 AD3d 1130] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gustavo Morales, Petitioner, v Keith Dubray, asDirector 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 making threats against a fellow inmate.Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed.Petitioner's administrative appeal was unsuccessful and this CPLR article 78 proceeding ensued.
The misbehavior report and the testimony adduced at the hearing provide substantialevidence to support the determination of guilt, and petitioner's denial that he made the allegedthreats presented a credibility determination to be resolved by the Hearing Officer (see Matter of Garner v Selsky, 47AD3d 1167 [2008]; Matter ofRivera v Selsky, 43 AD3d 1210 [2007]). Contrary to petitioner's assertion, the HearingOfficer's refusal to call a retired correction officer as a witness was not improper, inasmuch ashis testimony would have been redundant to that already produced at the hearing (see Matterof Sutherland v Selsky, 61 AD3d 1188 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lvdenied 12 [*2]NY3d 705 [2009]).
Petitioner's remaining claims have been reviewed and found either to be unpreserved orlacking in merit.
Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.