State of New York Supreme Court, Appellate Division Third Judicial Department
March 17, 2011
IN THE MATTER OF REGINALD SWINTON, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: February 2, 2011
Before: Peters, J.P., Lahtinen, Stein, McCarthy 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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
While female food service workers were making rounds to serve breakfast to inmates in the cellblock, petitioner stood in front of his cell with his gym shorts pulled above his waist and his genitals exposed. As a result, he was charged in a misbehavior report with engaging in lewd conduct and interfering with an employee. Following a tier III disciplinary hearing, he was found guilty of the charges. On administrative appeal, the charge of interfering with an employee was dismissed, but the remaining charge was upheld. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of one of the food service workers who witnessed petitioner's conduct, provide substantial evidence supporting the determination finding petitioner guilty of engaging in lewd conduct (see Matter of Domond v Fischer, 55 AD3d 1199, 1199 ; Matter of Rojas v Selsky, 55 AD3d 1189 ). Petitioner's testimony that he was appropriately dressed and did not intentionally expose his genitals created a credibility issue for the Hearing Officer to resolve (see Matter of Rivera v McGinnis, 290 AD2d 800, 800-801 , lv denied 98 NY2d 601 ; Matter of McMillian v Selsky, 268 AD2d 936 ). Therefore, we find no reason to disturb the determination at issue.
Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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