Matter of Frejomil v LaClair

Matter of Frejomil v LaClair 2007 NY Slip Op 09848 [46 AD3d 1061] December 13, 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 Richard Frejomil, Petitioner, v Darwin LaClair, as Superintendent of Great Meadow Correctional Facility, Respondent.

—[*1] Richard Frejomil, Comstock, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II disciplinary hearing, petitioner was found guilty of smuggling, refusing a direct order and stealing state property. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence consisting of the misbehavior report and petitioner's hearing testimony supports the determination of guilt (see generally Matter of Abreu v Goord, 38 AD3d 994 [2007]). Petitioner's denial of certain allegations created a credibility issue for resolution by the Hearing Officer (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]), as did his presentment of a retaliation defense (see Matter of Raqiyb v Goord, 30 AD3d 810 [2006]). As for petitioner's remaining contentions, including his claims that the misbehavior report was deficient and that he was denied the right to call witnesses, they have been examined and, to the extent preserved, have been found to be without merit. [*2]

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