| Matter of Gourdine v Venettozzi |
| 2010 NY Slip Op 06339 [76 AD3d 736] |
| August 5, 2010 |
| Appellate Division, Third Department |
| In the Matter of Clarence Gourdine, Petitioner, v D.Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1]
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, submitted a loss claim form for a package that he purportedlypaid for but had not received. An investigation determined that the package was received byanother inmate and that the invoice that petitioner submitted with the claim form had beenaltered. As a result, petitioner was charged in a misbehavior report with, as relevant here,forgery, making false statements and violating facility package rules. Following a tier IIIdisciplinary hearing, he was found guilty of those three charges. Petitioner's administrativeappeal was unavailing, after which he commenced this CPLR article 78 proceeding.[FN*]
The detailed misbehavior report, along with the testimony of the correction officer whoauthored the report and the documentary evidence, provide substantial evidence to support thedetermination of guilt on the charges of forgery and making false statements (see Matter of McLaughlin v Fischer,69 AD3d 1071, 1072 [2010]; Matter of Vargas v Selsky, 69 AD3d 1078, 1078 [2010]).Petitioner's denial that the invoice he presented had been altered raised a question of credibilityfor the Hearing Officer to resolve (see Matter of McLaughlin v Fischer, 69 AD3d at1072; Matter of Vargas v Selsky, 69 AD3d at 1078). Finally, a review of the recorddemonstrates that the determination resulted from the evidence presented at the hearing, ratherthan any bias on the part of the Hearing Officer (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362[2010]).
Petitioner's remaining contentions have been examined and found to be without merit.
Spain, J.P., Rose, McCarthy, Garry and Egan Jr., JJ., concur. Adjudged that the part of thepetition challenging the determination finding petitioner guilty of violating facility package rulesis dismissed, as moot, without costs.
Adjudged that the part of the determination finding petitioner guilty of forgery and makingfalse statements is confirmed, without costs, and petition dismissed.
Footnote *: After Supreme Court transferredthe proceeding to this Court, the determination was administratively modified by dismissal of thecharge of violating facility package rules. The portion of the petition challenging the finding onthat charge is now moot.