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Gourdine v. Venettozzi

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


August 5, 2010

IN THE MATTER OF CLARENCE GOURDINE, PETITIONER,
v.
D. VENETTOZZI, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 9, 2010

Before: Spain, J.P., Rose, McCarthy, Garry and Egan Jr., 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, a prison inmate, submitted a loss claim form for a package that he purportedly paid for but had not received. An investigation determined that the package was received by another inmate and that the invoice that petitioner submitted with the claim form had been altered. As a result, petitioner was charged in a misbehavior report with, as relevant here, forgery, making false statements and violating facility package rules. Following a tier III disciplinary hearing, he was found guilty of those three charges. Petitioner's administrative appeal was unavailing, after which he commenced this CPLR article 78 proceeding.*fn1

The detailed misbehavior report, along with the testimony of the correction officer who authored the report and the documentary evidence, provide substantial evidence to support the determination of guilt on the charges of forgery and making false statements (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Vargas v Selsky, 69 AD3d 1078, 1078 [2010]). Petitioner's denial that the invoice he presented had been altered raised a question of credibility for the Hearing Officer to resolve (see Matter of McLaughlin v Fischer, 69 AD3d at 1072; Matter of Vargas v Selsky, 69 AD3d at 1078). Finally, a review of the record demonstrates that the determination resulted from the evidence presented at the hearing, rather than any bias on the part of the Hearing Officer (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010]).

Petitioner's remaining contentions have been examined and found to be without merit.

Spain, J.P., Rose, McCarthy, Garry and Egan Jr., JJ., concur.

ADJUDGED that the part of the petition challenging the determination finding petitioner guilty of violating facility package rules is dismissed, as moot, without costs.

ADJUDGED that the part of the determination finding petitioner guilty of forgery and making false statements is confirmed, without costs, and petition dismissed.


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