| Matter of Valentino v Bezio |
| 2010 NY Slip Op 03212 [72 AD3d 1376] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Florio Valentino, Petitioner, v Norman R. Bezio,as Director of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was served with a misbehavior report charging him with makingthreats, creating a disturbance, refusing a direct order and interfering with an employee after heallegedly refused to comply with a correction officer's order to move a computer out of the backroom of the facility's law library. Following a tier III disciplinary hearing, petitioner was foundguilty of all charges. On administrative appeal, the charge that petitioner had made threats wasdismissed and the determination was otherwise affirmed. Petitioner now appeals and we modify.
Initially, respondent concedes and we agree that, upon a review of the record, that part of thedetermination finding petitioner guilty of interfering with an employee is not supported bysubstantial evidence and must be annulled (see Matter of Quinones v Fischer, 55 AD3d 1200, 1200 [2008]).Turning to the remaining charges, the detailed misbehavior report, along with the testimony ofthe correction officer who authored the report, provide substantial evidence to support thedetermination of guilt (see Matter ofVargas v Selsky, 69 AD3d 1078, 1078 [2010]; [*2]Matter of Smith v Fischer, 64 AD3d1061, 1061-1062 [2009], lv denied 13 NY3d 712 [2009]). The fact that petitionerand his inmate witness offered a different version of events, and the correction officer'stestimony at times appeared internally inconsistent, raised issues of credibility to be decided bythe Hearing Officer (see Matter ofPellot v Fischer, 67 AD3d 1231 [2009]; Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008], appealdismissed 12 NY3d 776 [2009]). Finally, the misbehavior report did not violate theregulation that requires it be written "as soon as practicable," as the record demonstrates that theincident occurred shortly before the correction officer left for vacation and the report was writtenon the day he returned to the facility and discussed the incident with his supervisor (see 7NYCRR 251-3.1 [a]; Matter ofDecastro v Prack, 62 AD3d 1224, 1225 [2009]; Matter of Schultz v Goord, 301AD2d 764, 764-765 [2003]).
Mercure, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interfering with an employee; petition granted to that extent and the Commissioner ofCorrectional Services is directed to expunge all references thereto from petitioner's institutionalrecord; and, as so modified, confirmed.