Matter of Credle v Selsky

Matter of Credle v Selsky 2007 NY Slip Op 09649 [46 AD3d 989] December 6, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

In the Matter of Kevin Credle, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Kevin Credle, New York City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner failed to produce a urine specimen within the three-hour time period allotted after being instructed to do so by a correction officer. As a result, he was charged in a misbehavior report with refusing a direct order and failing to comply with urinalysis testing procedures. Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, documentary evidence and testimony at the hearing provide substantial evidence supporting the determination of guilt (see Matter of Levy v Goord, 22 AD3d 929 [2005]). While petitioner maintained that he suffered from a medical condition that rendered him incapable of producing a specimen, this presented a credibility issue for the Hearing Officer to resolve (see id. at 929-930) and, in any event, was not substantiated by the medical testimony given at the hearing. Therefore, we find no reason to disturb the determination of guilt. [*2]

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.