State of New York Supreme Court, Appellate Division Third Judicial Department
July 28, 2011
IN THE MATTER OF LUIS NARVAEZ, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: June 8, 2011
Before: Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, 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.
A misbehavior report charged petitioner with failing to return four books he borrowed from the prison library. Following a tier III disciplinary hearing, petitioner was found guilty of violating a prison disciplinary rule prohibiting the loss or theft of state property. The finding was upheld on administrative appeal, prompting this CPLR article 78 proceeding.
The determination is supported by substantial evidence including the misbehavior report, library loan forms and the testimony of the library assistant (see Matter of Proul v Goord, 308 AD2d 612, 613 ; Matter of Porter v McGinnis, 307 AD2d 500, 500 , lv denied 100 NY2d 516 ). To the extent that the record contains evidence that petitioner attempted to return the books by placing them into a library drop box, this created factual and credibility issues to be resolved by the Hearing Officer (see Matter of Proul v Goord, 308 AD2d at 613; Matter of Porter v McGinnis, 307 AD2d at 500). We reject petitioner's argument that he was improperly denied his employee assistant as a witness inasmuch as the record reflects that the assistant's testimony would have been based upon his interview of the library assistant, who did testify (see Matter of Davis v Prack, 63 AD3d 1457, 1458 ; Matter of Thomas v Bennett, 271 AD2d 768, 768 ). We have reviewed petitioner's remaining contentions, including those concerning the timing of the misbehavior report and hearing, and find them to be without merit.
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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