Matter of Pagan v Selsky

Matter of Pagan v Selsky 2007 NY Slip Op 09147 [45 AD3d 1120] November 21, 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 Omar Pagan, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Omar Pagan, Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with illicit drug use. Following a tier III disciplinary hearing, he was found guilty of that charge. After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, positive urinalysis test results and hearing testimony provide substantial evidence of petitioner's guilt (see Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lv denied 8 NY3d 816 [2007]; Matter of Silverstein v Selsky, 32 AD3d 1100, 1100 [2006]). Petitioner's exculpatory explanations attempting to undermine and/or explain away the positive drug test created credibility issues for resolution by the Hearing Officer (see Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). As for petitioner's claims of hearing officer bias and inadequate employee assistance, they have not been preserved for our review (see Matter of Torres v Coombe, 234 AD2d 710, 710 [1996]). In any event, those claims, along with petitioner's remaining contentions, have been examined and found to be unavailing. [*2]

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