| Matter of Darshan v Bango |
| 2011 NY Slip Op 03150 [83 AD3d 1302] |
| April 21, 2011 |
| Appellate Division, Third Department |
| In the Matter of Travis Darshan, Petitioner, v Officer Bango,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Washington County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, an inmate, asked a female correction employee for her assistance in using thecomputer. When she responded to his request, she found him masturbating in a chair with hispants unzipped and his genitals exposed. As a result, petitioner was charged in a misbehaviorreport with engaging in lewd conduct. He was found guilty of the charge at the conclusion of atier III disciplinary hearing and the determination was later affirmed on administrative appeal.This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report provides substantial evidence supporting thedetermination finding petitioner guilty of engaging in lewd conduct (see Matter of Johnson v Goord, 42AD3d 626, 627 [2007]; Matter ofTafari v Selsky, 38 AD3d 1079, 1079 [2007], lv denied 8 NY3d 816 [2007]).While petitioner denied any wrongdoing, this presented a credibility issue for the Hearing Officerto resolve (see Matter of Lynch vFischer, 76 AD3d 734, 735 [2010]; Matter of LaFontant v Fischer, 51 AD3d 1347, 1347 [2008]).Likewise, we are not persuaded that petitioner's claim of inadequate employee assistance hasmerit given that the testimony of petitioner's proposed witnesses was either irrelevant (see Matter of Dennis v Bezio, 82 AD3d1398, 1399 [2011]; Matter ofLozada v Cook, 67 AD3d 1232, [*2]1233 [2009], lvdenied 14 NY3d 706 [2010]) or concerned a factual contention of petitioner that the HearingOfficer accepted at the hearing as true.
Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.