| Matter of Lovett v Smith |
| 2011 NY Slip Op 00317 [80 AD3d 1039] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Cleveland Lovett, Petitioner, v Joseph T.Smith, as Superintendent of Shawangunk Correctional Facility,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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner was on the telephone when an announcement was made over the facility loudspeaker directing all inmates to lock into their cells for the standing count. By the time petitionerresponded to the directive, the gate to his assigned cell had closed. As a result, he was charged ina misbehavior report with refusing a direct order, being out of place, violating lock in proceduresand violating count procedures. He was found guilty of the charges following a tier II disciplinaryhearing and the determination was affirmed on administrative appeal. This CPLR article 78proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho authored it, provide substantial evidence supporting the determination of guilt (see Matter of Pender v Fischer, 69AD3d 1099, 1100 [2010], lv denied 14 NY3d 708 [2010]; Matter of McLaughlin v Fischer, 69AD3d 1071, 1072 [2010]). Petitioner's contrary testimony, including his claim that themisbehavior report was written in retaliation for his having filed a [*2]complaint, presented credibility issues for the Hearing Officer toresolve (see Matter of Lamage vBezio, 74 AD3d 1676, 1676-1677 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]).Furthermore, we find no merit to petitioner's claim that he was denied a fair hearing inasmuch asthe record demonstrates that the determination flowed from substantial evidence of petitioner'sguilt adduced at the hearing (see Matterof Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Accordingly, we find no reason todisturb it.
Mercure, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.