Matter of Hale v Selsky

Matter of Hale v Selsky 2008 NY Slip Op 09678 [57 AD3d 1136] December 11, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

mIn the Matter of Michael S. Hale, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Michael S. Hale, Auburn, 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 certain prison disciplinary rules.

Petitioner engaged in a verbal altercation with a correction sergeant while in the law library and disregarded his directives to step out into the hallway and be quiet. As a result, he was charged in a misbehavior report with refusing a direct order, creating a disturbance and harassing an employee. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it as well as the sergeant and another officer present at the scene, provide substantial evidence supporting the determination of guilt (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Vigliotti v Bell, 52 AD3d 1064 [2008]; Matter of Rodriguez v Selsky, 47 AD3d 1173, 1173 [2008]). We have examined petitioner's claims that he was improperly denied the right to present witnesses and certain [*2]documentary evidence and find them to be lacking in merit. Therefore, we decline to disturb the determination at issue.

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