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Murray v. Selsky

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 15, 2009

IN THE MATTER OF KEITH MURRAY, 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: November 24, 2008

Before: Cardona, P.J., Mercure, Rose, Kavanagh and Stein, 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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with making threats. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report, related documentation and hearing testimony from the correction officer who authored the report and the inmate who petitioner threatened (see Matter of Williams v Selsky, 50 AD3d 1426, 1426-1427 [2008], lv denied 11 NY3d 703 [2008]). As for petitioner's denial of the allegations against him, a credibility issue was created for resolution by the Hearing Officer (see Matter of Jordan v Fischer, 53 AD3d 1013, 1013 [2008]). Petitioner's remaining contentions, including his claims that he was improperly confined to the special housing unit, that he was denied adequate employee assistance and that the Hearing Officer was biased, have been examined and, to the extent preserved, are unavailing.

Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur.

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

20090115

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