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In re Green

Supreme Court of New York, Third Department

July 18, 2013

In the Matter of MUHAMMAD GREEN, Petitioner,
v.
M. TAYLOR JR., as Correction Officer, et al., Respondents.

Calendar Date: June 6, 2013.

Muhammad Green, Ossining, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

Before: Stein, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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, a prison inmate, was charged in a misbehavior report with possession of a weapon and possession of contraband, after a search of his cell revealed a sharpened toothbrush with a cloth fastened with rubber bands as a handle and two stones that could be used to sharpen a weapon. Following a tier III disciplinary hearing, petitioner was found guilty as charged and a penalty was imposed. Upon petitioner's administrative appeal, the determination was upheld with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Rodriguez v Fischer, 101 A.D.3d 1294, 1295 [2012]; Matter of Hayes v Fischer, 78 A.D.3d 1396, 1396-1397 [2010]; Matter of Trisvan v Fischer, 71 A.D.3d 1253, 1254 [2010]). To the extent that petitioner contends that the procedures employed in the search of his cell violated Department of Corrections and Community Supervision Directive No. 4910, suffice it to say that the record contains conflicting testimony with respect to whether petitioner was allowed to observe the search thereof, thus presenting a credibility issue for the Hearing Officer to resolve (see Matter of Dalrymple v Fischer, 65 A.D.3d 725, 725 [2009]; Matter of Vines v Goord, 19 A.D.3d 951, 952 [2005]). Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Stein, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

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


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