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Kelly v. Dep't of Correctional Services

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


July 1, 2010

IN THE MATTER OF PATRICK KELLY, PETITIONER,
v.
DEPARTMENT OF CORRECTIONAL SERVICES ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Cardona, P.J., 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 certain prison disciplinary rules.

During a pat frisk, petitioner was found to be in possession of legal papers belonging to two other inmates, as well as betting slips, a highlighter and a bottle of white-out. As a result, he was charged in a misbehavior report with possessing contraband, possessing gambling paraphernalia, possessing unauthorized legal materials and providing unauthorized legal assistance. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony adduced at the disciplinary hearing, as well as the materials confiscated from petitioner, provide substantial evidence supporting the determination of guilt (see Matter of Norris v Fischer, 71 AD3d 1211, 1212 [2010]). Petitioner's exculpatory testimony and assertion that he did not know that certain items were contraband presented a credibility issue for the Hearing Officer to resolve (see Matter of Silverstein v Bezio, 65 AD3d 1424, 1425 [2009]; Matter of Ingartua v Rivera, 58 AD3d 1046 [2009]). We decline to consider petitioner's challenge to his apparent transfer to another correctional facility inasmuch as it is an attempt to improperly expand the scope of the original petition (see Matter of Hernandez v Walsh, 30 AD3d 703, 704 [2006], lv denied 7 NY3d 715 [2006]).

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

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

20100701

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