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Morales v. Dubray

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 14, 2009

IN THE MATTER OF GUSTAVO MORALES, PETITIONER,
v.
KEITH DUBRAY, 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: April 8, 2009

Before: Cardona, P.J., Mercure, Rose, Lahtinen 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 was charged in a misbehavior report with making threats against a fellow inmate. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. Petitioner's administrative appeal was unsuccessful and this CPLR article 78 proceeding ensued.

The misbehavior report and the testimony adduced at the hearing provide substantial evidence to support the determination of guilt, and petitioner's denial that he made the alleged threats presented a credibility determination to be resolved by the Hearing Officer (see Matter of Garner v Selsky, 47 AD3d 1167 [2008]; Matter of Rivera v Selsky, 43 AD3d 1210 [2007]). Contrary to petitioner's assertion, the Hearing Officer's refusal to call a retired correction officer as a witness was not improper, inasmuch as his testimony would have been redundant to that already produced at the hearing (see Matter of Sutherland v Selsky, ___ AD3d ___, 2009 NY Slip Op 02866 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied ___ NY3d ___ [Mar. 26, 2009]).

Petitioner's remaining claims have been reviewed and found either to be unpreserved or lacking in merit.

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

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

20090514

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