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In the Matter of Jose Vaello v. William Connolly

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


May 19, 2011

IN THE MATTER OF JOSE VAELLO, PETITIONER,
v.
WILLIAM CONNOLLY, AS SUPERINTENDENT OF FISHKILL CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ.

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

Petitioner commented on a female civilian employee's appearance and proceeded to stare at her while he was working, which made her feel uncomfortable. At that time, she told petitioner to stop making comments and that they were inappropriate. A week or two later, petitioner made another comment about her appearance and she again told him that it was inappropriate. She immediately notified correction officials and petitioner was charged in a misbehavior report with stalking, refusing a direct order and interfering with an employee. At the conclusion of a tier III disciplinary hearing, he was found guilty of stalking and refusing a direct order. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Bermudez v Fischer, 55 AD3d 1099, 1100 [2008], lv denied 11 NY3d 714 [2009], cert denied US , 130 S Ct 111 [2009]). Although petitioner denied engaging in any inappropriate behavior or refusing any direct orders, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Morusma v Fischer, 74 AD3d at 1675; Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]). Petitioner's claim that the misbehavior report did not comply with the requirements of 7 NYCRR 251-3.1 has been considered and is unavailing. Consequently, the determination must be confirmed.

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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