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In the Matter of Richard Ford v. Albert Prack

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


December 13, 2012

IN THE MATTER OF RICHARD FORD, PETITIONER,
v.
ALBERT PRACK, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Mercure, J.P., Rose, Spain, Stein 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting him from engaging in sex acts, forcibly touching an employee's sexual or intimate parts and making false statements. An eyewitness testified that she observed him kissing an employee's buttocks and, when coupled with the confidential testimony of an investigator who interviewed petitioner regarding the incident and the misbehavior report itself, substantial evidence accordingly exists to support the determination of guilt (see Matter of Taveras v Fischer, 59 AD3d 827, 828 [2009], lv denied 13 NY3d 702 [2009]; Matter of Powell v Goord, 34 AD3d 876, 877 [2006]). The denials of petitioner and the employee created credibility issues for resolution by the Hearing Officer, as did petitioner's claim that the eyewitness had reason to retaliate against him (see Matter of Taveras v Fischer, 59 AD3d at 828). Petitioner's remaining arguments, to the extent they are properly before us, have been examined and found to lack merit.

Mercure, J.P., Rose, Spain, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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