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Tusa v. Bezio

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


February 11, 2010

IN THE MATTER OF FRANK TUSA, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: December 17, 2009

Before: Mercure, J.P., Peters, Malone Jr., 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 a prison disciplinary rule.

Petitioner was charged in a misbehavior report with tampering with state property and possessing stolen property. Following a tier III disciplinary hearing, petitioner was found guilty of possessing stolen property and a penalty was imposed. That determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner's contention, the misbehavior report, together with the hearing testimony of the correction officer who authored it, provide substantial evidence in support of the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]; Matter of Smith v Goord, 45 AD3d 1119, 1120 [2007]). Significantly, the correction officer testified that petitioner admitted to him that he had possessed and read a letter written by another inmate, addressed to the facility's deputy of security, which he had removed from the cellblock mailbox. The contrary testimony of petitioner and his inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Ortiz v Fischer, 64 AD3d 1111, 1112 [2009]). Additionally, there is no support in the record for petitioner's contention that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of Warren v Fischer, 63 AD3d 1466, 1467 [2009]).

Mercure, J.P., Peters, Malone Jr., Stein and Garry, JJ., concur.

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

20100211

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