| Matter of Silverstein v Bezio |
| 2009 NY Slip Op 06610 [65 AD3d 1424] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Scott Silverstein, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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.
During a search of petitioner's cell, correction officers recovered a number of itemsincluding, among other things, electronics equipment and cassette tapes—some of whichhad been altered and were identified as belonging to another inmate—cinnamon takenfrom the mess hall, a wooden ruler and a rubber glove containing a yellow liquid resemblingurine. As a result, petitioner was charged in a misbehavior report with committing an unhygienicact, possessing contraband, stealing state property, altering state or personal property andpossessing stolen property. He was found guilty of all of the charges following a tier IIIdisciplinary hearing. The determination was later affirmed on administrative appeal with amodified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the documentary evidence and testimonyprovided by correction officers familiar with the search, comprise substantial evidencesupporting the determination of guilt (see Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]; Matter of Credle v Selsky, 46 AD3d989, 990 [2007]; Matter of Johnson v Goord, 40 [*2]AD3d 1335, 1336 [2007]). Although petitioner presentedexculpatory reasons for possessing some of the items, denied possessing others and also deniedthat the liquid in the recovered glove was urine, this presented a credibility issue for the HearingOfficer to resolve (see Matter of Jenkinsv Selsky, 51 AD3d 1239, 1240 [2008]; Matter of Williams v Selsky, 50 AD3d 1426, 1427 [2008], lvdenied 11 NY3d 703 [2008]). Petitioner's remaining claims, including his assertion that theHearing Officer was biased, have been considered and found to be unavailing.
Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.