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Singh v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF BRIAN SINGH, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, 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 a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of threatening another inmate. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report and testimony from its author, the correction counselor who investigated the incident (see Matter of Muller v Fischer, 62 AD3d 1191, 1191 [2009]; Matter of Perretti v Fischer, 58 AD3d 999, 1000 [2009], lv denied 12 NY3d 709 [2009]). Significantly, the counselor testified that petitioner admitted to him that he had made the purported statements to his fellow inmate. The fact that, at the hearing, petitioner denied making the alleged threats only served to raise a credibility issue to be resolved by the Hearing Officer (see Matter of Morales v Dubray, 62 AD3d 1130, 1130 [2009]; Matter of Garner v Selsky, 47 AD3d 1167, 1167 [2008]).

Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ., concur.

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

20091119

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