| Matter of Gonzalez v Prack |
| 2009 NY Slip Op 04140 [62 AD3d 1220] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gabriel Gonzalez, Petitioner, v Albert Prack, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
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, an inmate, was charged in two separate misbehavior reports with violatingvarious prison disciplinary rules. Following a combined tier III hearing, he was found guilty ofassaulting staff (two counts), committing an unhygienic act, disobeying a direct order andrefusing a search. On administrative appeal, the determination was affirmed with a modifiedpenalty. This CPLR article 78 proceeding seeking annulment ensued.
We confirm. The determination of guilt is supported by substantial evidence consisting ofthe misbehavior reports and related documentation, together with the testimony adduced at thehearing, including the confidential testimony considered by the Hearing Officer in camera (see Matter of Sweet v Poole, 48 AD3d867, 867 [2008]). Regarding petitioner's assertion that the record contains conflictingevidence, credibility issues were created for resolution by the Hearing Officer (see Matter of McNulty v Fischer, 49AD3d 946, 946-947 [2008]). We have examined petitioner's remaining contentions,including his claims that the hearing was untimely, he was [*2]denied the right to present witness testimony and the HearingOfficer was biased, and we discern no basis to disturb the determination.
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.