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In the Matter of Norman Latham v. Justin Taylor

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


January 20, 2011

IN THE MATTER OF NORMAN LATHAM, PETITIONER,
v.
JUSTIN TAYLOR, AS SUPERINTENDENT OF GOUVERNEUR CORRECTIONAL FACILITY, RESPONDENT.

Decided and Entered: January 20, 2011

MEMORANDUM AND JUDGMENT

Calendar Date: November 29, 2010

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner failed to write his name on the sign out sheet when reporting to his prison job even though he had been instructed on several prior occasions that this was necessary. As a result, he was charged in a misbehavior report with violating facility movement regulations and refusing a direct order. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). Although petitioner maintained that he signed out as required on the date in question, this presented a question of credibility for the Hearing Officer to resolve (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072). Moreover, his claim that the misbehavior report was written in retaliation for a complaint he had filed was not raised at the hearing where it could be addressed and, therefore, is not preserved for our review (see Matter of Hamilton v Bezio, 76 AD3d 1125, 1126 [2010]). In view of the foregoing, we decline to disturb the determination of guilt.

Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110120

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