State of New York Supreme Court, Appellate Division Third Judicial Department
September 20, 2012
IN THE MATTER OF JAMES R. MERCER JR., PETITIONER,
RANDY K. JAMES, AS SUPERINTENDENT OF LIVINGSTON CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: July 30, 2012
Before: Mercure, J.P., Spain, Malone Jr., 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 certain prison disciplinary rules.
While performing a cell search of petitioner's cube, a correction officer found, among other things, a hockey ball similar to the type used in the facility for sports activities. As a result, petitioner was charged in a misbehavior report with possession of contraband and stealing state property. Following a tier II disciplinary hearing, petitioner was found guilty of both charges. The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the documentary evidence indicating that a state-issued hockey ball was found in petitioner's cell, provide substantial evidence supporting the determination of guilt (see Matter of Nimmons v Fischer, 85 AD3d 1460, 1461 ; Matter of West v New York State Dept. of Correctional Servs., 81 AD3d 1016, 1017 ). Petitioner's assertion that he brought the item with him from another facility was contradicted by, among other things, documentary evidence at the hearing and, in any event, created a credibility issue for the Hearing Officer to resolve (see Matter of Silverstein v Bezio, 65 AD3d 1424, 1425 ).
Petitioner's remaining arguments have been examined and found to be unpersuasive.
Mercure, J.P., Spain, Malone Jr., 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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