| Matter of Tusa v Bezio |
| 2010 NY Slip Op 01042 [70 AD3d 1159] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Frank Tusa, Petitioner, v Norman Bezio,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with tampering with state property andpossessing stolen property. Following a tier III disciplinary hearing, petitioner was found guiltyof possessing stolen property and a penalty was imposed. That determination was affirmed onadministrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the misbehavior report, together with thehearing testimony of the correction officer who authored it, provide substantial evidence insupport of the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]; Matter of Smith v Goord, 45 AD3d1119, 1120 [2007]). Significantly, the correction officer testified that petitioner admitted tohim that he had possessed and read a letter written by another inmate, addressed to the facility'sdeputy of security, which he had removed from the cellblock mailbox. The contrary testimony ofpetitioner and his inmate witness presented a credibility issue for the Hearing Officer to resolve(see Matter of Ortiz v Fischer, 64AD3d 1111, 1112 [2009]). Additionally, there is no support in the record for petitioner'scontention that the Hearing Officer was biased or that the determination flowed from any bias(see Matter of Warren [*2]v Fischer, 63 AD3d 1466, 1467 [2009]).
Mercure, J.P., Peters, Malone Jr., Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.