| Matter of Vidal-Ortiz v Fischer |
| 2011 NY Slip Op 04151 [84 AD3d 1627] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Yokohiro Vidal-Ortiz, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
During the course of an investigation, it was determined that petitioner sold marihuana to aconfidential informant on two occasions. When petitioner did not receive payment for the secondsale, he approached the informant in the yard, accompanied by four or five unidentifiedSpanish-speaking inmates, and threatened to injure the informant with a weapon unless hereceived $150. As a result, petitioner was charged in a misbehavior report with selling drugs,making threats and extortion. Following a tier III disciplinary hearing, petitioner was found guiltyof the charges. The determination was later affirmed on administrative appeal, resulting in thisCPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of the correction officerwho prepared it and the confidential testimony considered by the Hearing Officer in camera,provide substantial evidence supporting the determination of guilt (see Matter of Washington v Fischer, 74AD3d 1659, 1659 [2010]; Matter ofGriffith v Selsky, 53 AD3d 884 [2008]). Petitioner's denial of any wrongdoing presenteda credibility issue for the Hearing [*2]Officer to resolve (see Matter of Rivera v Selsky, 43AD3d 1210, 1210 [2007]; Matter ofJackson v Goord, 8 AD3d 852, 853 [2004]). His remaining claims are unpreserved dueto his failure to raise them at the disciplinary hearing.
Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.