Matter of A'Gard v LaValley

Matter of A'Gard v LaValley 2013 NY Slip Op 01883 Decided on March 21, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 21, 2013
514499

[*1]In the Matter of KENITH A'GARD, Petitioner,

v

THOMAS LaVALLEY, as Superintendent of Clinton Correctional Facility, et al., Respondents.

Calendar Date: January 24, 2013
Before: Peters, P.J., Lahtinen, McCarthy and Garry, JJ.


Kenith A'Gard, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondents.


MEMORANDUM AND JUDGMENT

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 respondent Superintendent of Clinton Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner left his cell block for his scheduled call out to the law library, but proceeded instead to the mosque. As a result, petitioner was charged in a misbehavior report with violating facility movement regulations and being out of place. He was found guilty of the charges at the conclusion of a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and petitioner's own testimony provide substantial evidence supporting the determination of guilt (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]; Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 [2007]). While petitioner maintained that he had permission from another officer to go to the mosque instead of the law library, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Sterling v Fischer, 75 AD3d 709 [2010]; Matter of Harrison v Bertone, 51 AD3d 1350 [2008]). His remaining contentions have not been preserved for our review. [*2]

Peters, P.J., Lahtinen, McCarthy and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.