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Hale v. Selsky

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 11, 2008

IN THE MATTER OF MICHAEL S. HALE, PETITIONER,
v.
DONALD SELSKY, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner engaged in a verbal altercation with a correction sergeant while in the law library and disregarded his directives to step out into the hallway and be quiet. As a result, he was charged in a misbehavior report with refusing a direct order, creating a disturbance and harassing an employee. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it as well the sergeant and another officer present at the scene, provide substantial evidence supporting the determination of guilt (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Vigliotti v Bell, 52 AD3d 1064 [2008]; Matter of Rodriguez v Selsky, 47 AD3d 1173, 1173 [2008]). We have examined petitioner's claims that he was improperly denied the right to present witnesses and certain documentary evidence and find them to be lacking in merit. Therefore, we decline to disturb the determination at issue.

Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20081211

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