Calendar Date: June 9, 2010
Before: Cardona, P.J., Mercure, Rose, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.
After petitioner, a prison inmate, was observed making several exchanges between his mouth and anus while using the inmate bathroom in the visiting room, he was served with a misbehavior report charging him with, as relevant here, smuggling. Petitioner was found guilty of this charge following a tier III disciplinary hearing, and that determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, along with the testimony of the correction officer who witnessed petitioner's actions and authored the report, provide substantial evidence to support the determination of guilt, despite the fact that the item alleged to have been smuggled was never found (see Matter of Vargas v Selsky, 69 AD3d 1078, 1078 ; Matter of Spulka v Goord, 12 AD3d 1004, 1005 ; Matter of Roman v Goord, 11 AD3d 858, 859 ). Petitioner's claim that his furtive behavior resulted from a medical condition raised a question of credibility to be resolved by the Hearing Officer (see Matter of Smiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1149 ; Matter of Dixon v Brown, 62 AD3d 1223, 1224 , lv denied 13 NY3d 704 ).
Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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