| Matter of Vaello v Connolly |
| 2011 NY Slip Op 04148 [84 AD3d 1624] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jose Vaello, Petitioner, v William Connolly, asSuperintendent of Fishkill Correctional Facility, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commented on a female civilian employee's appearance and proceeded to stare ather while he was working, which made her feel uncomfortable. At that time, she told petitionerto stop making comments and that they were inappropriate. A week or two later, petitioner madeanother comment about her appearance and she again told him that it was inappropriate. Sheimmediately notified correction officials and petitioner was charged in a misbehavior report withstalking, refusing a direct order and interfering with an employee. At the conclusion of a tier IIIdisciplinary hearing, he was found guilty of stalking and refusing a direct order. Thedetermination was later affirmed on administrative appeal, resulting in this CPLR article 78proceeding.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Bermudez v Fischer, 55AD3d 1099, 1100 [2008], lv denied 11 NY3d 714 [2009], cert denied 558US —, 130 S Ct 111 [2009]). Although petitioner denied [*2]engaging in any inappropriate behavior or refusing any directorders, this presented a credibility issue for the Hearing Officer to resolve (see Matter ofMorusma v Fischer, 74 AD3d at 1675; Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]).Petitioner's claim that the misbehavior report did not comply with the requirements of 7 NYCRR251-3.1 has been considered and is unavailing. Consequently, the determination must beconfirmed.
Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.