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In the Matter of Kenith A'gard v. Thomas Lavalley

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


March 21, 2013

IN THE MATTER OF KENITH A'GARD, PETITIONER,
v.
THOMAS LAVALLEY, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: January 24, 2013

Before: Peters, P.J., Lahtinen, 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 Superintendent of Clinton Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner left his cell block for his scheduled call out to the law library, but proceeded instead to the mosque. As a result, petitioner was charged in a misbehavior report with violating facility movement regulations and being out of place. He was found guilty of the charges at the conclusion of a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and petitioner's own testimony provide substantial evidence supporting the determination of guilt (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]; Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 [2007]). While petitioner maintained that he had permission from another officer to go to the mosque instead of the law library, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Sterling v Fischer, 75 AD3d 709 [2010]; Matter of Harrison v Bertone, 51 AD3d 1350 [2008]). His remaining contentions have not been preserved for our review.

Peters, P.J., Lahtinen, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130321

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