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In the Matter of Sebastian v. New York State Department of

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


April 19, 2012

IN THE MATTER OF SEBASTIAN VENTIMIGLIA, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: February 21, 2012

Before: Rose, J.P., Lahtinen, Spain, 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with refusing a direct order after he failed to disclose to a correction officer the name of the individual who changed the information on his package room folder to enable him to receive a larger monthly allotment of food. He was found guilty of this charge following a tier III 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 its author, provide substantial evidence supporting the determination of guilt (see Matter of Green v Bradt, 79 AD3d 1566, 1567 [2010], lv denied 16 NY3d 709 [2011]; Matter of Wahhab v Fischer, 77 AD3d 996, 997 [2010]). Petitioner's assertion that he did not know the identity of the individual in question presented a credibility issue for the Hearing Officer to resolve (see Matter of Vaello v Connolly, 84 AD3d 1624, 1625 [2011], appeal dismissed 17 NY3d 854 [2011]; Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]). His claim of hearing officer bias is not preserved for our review given his admitted failure to raise it in his administrative appeal (see Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]; Matter of Quinones v Fischer, 55 AD3d 1200, 1200-1201 [2008]).

Rose, J.P., Lahtinen, Spain, McCarthy and Garry, JJ., concur.

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

Robert D. Mayberger Clerk of the Court

ENTER:

20120419

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