Matter of Martin v Goord

Matter of Martin v Goord 2007 NY Slip Op 10445 [46 AD3d 1294] December 27, 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 Ricky Martin, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1] Ricky Martin, Comstock, petitioner pro se.

Andrew M. Cuomo, Attorney General, New York City (Diana R.H. Winters of counsel), for respondent.

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

Following a tier III disciplinary hearing, petitioner was found guilty of harassment, interference with an employee and refusing a direct order. The Hearing Officer imposed a penalty of three months in the special housing unit with a corresponding loss of privileges. The determination was thereafter affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report, together with testimony adduced at the hearing (see Matter of Graham v McKinney, 24 AD3d 1151, 1151 [2005]; Matter of Mendez v Goord, 21 AD3d 1191, 1191-1192 [2005]). To the extent that petitioner offered contrary testimony, a credibility issue was created for resolution by the Hearing Officer (see Matter of Ackridge v Ekpe, 43 AD3d 509, 509 [2007]). Regarding the penalty imposed, "it cannot be said to be so disproportionate to the offense as to shock one's sense of fairness" (Matter of Polanco v Bennett, 6 AD3d 846, 846 [2004]). We have examined petitioner's remaining contentions, including his claims that the misbehavior report and the written disposition were deficient and the Hearing Officer was biased, and find them to be without merit. [*2]

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