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Gonzalez v. Prack

State of New York Supreme Court, Appellate Division Third Judicial Department


May 28, 2009

IN THE MATTER OF GABRIEL GONZALEZ, PETITIONER,
v.
ALBERT PRACK, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: April 8, 2009

Before: Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ.

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, an inmate, was charged in two separate misbehavior reports with violating various prison disciplinary rules. Following a combined tier III hearing, he was found guilty of assaulting staff (two counts), committing an unhygienic act, disobeying a direct order and refusing a search. On administrative appeal, the determination was affirmed with a modified penalty. This CPLR article 78 proceeding seeking annulment ensued.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior reports and related documentation, together with the testimony adduced at the hearing, including the confidential testimony considered by the Hearing Officer in camera (see Matter of Sweet v Poole, 48 AD3d 867, 867 [2008]). Regarding petitioner's assertion that the record contains conflicting evidence, credibility issues were created for resolution by the Hearing Officer (see Matter of McNulty v Fischer, 49 AD3d 946, 946-947 [2008]). We have examined petitioner's remaining contentions, including his claims that the hearing was untimely, he was denied the right to present witness testimony and the Hearing Officer was biased, and we discern no basis to disturb the determination.

Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur.

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

20090528

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