Matter of Abdullah v Selsky

Matter of Abdullah v Selsky 2007 NY Slip Op 08804 [45 AD3d 1072] November 15, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of Elijah Abdullah, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

—[*1] Elijah Abdullah, Dannemora, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

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

At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of possessing a weapon and damaging state property. After that determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and the testimony of the correction officer who authored it and conducted the search of petitioner's cell constitute substantial evidence to support the determination of guilt (see Matter of Brown v Goord, 24 AD3d 840, 840 [2005]; Matter of Encarnacion v Goord, 19 AD3d 906, 907 [2005]). Petitioner's assertion that the weapon had been planted in his cell by another inmate created a credibility issue for resolution by the Hearing Officer (see Matter of Ameen v Selsky, 25 AD3d 1059, 1059 [2006]). We have examined petitioner's remaining contentions, including his claims that he was denied the right to call witnesses and present other evidence, and find them to be unpersuasive. [*2]

Mercure, J.P., Peters, Mugglin, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.