Abreu v. Goord

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 which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was observed by a female correction officer exposing his genitals and masturbating while on the telephone. As a result, he was charged in a misbehavior report with lewd exposure and harassment. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. We confirm. The misbehavior report and petitioner’s own testimony, in which he admitted that he used the telephone for over 20 minutes without reaching anyone, constitute substantial evidence supporting the determination of guilt (see Matter of Lamage v Selsky, 26 AD3d 699, 700 [2006]; Matter of Guerin v Miller, 16 AD3d 799 [2005]). Petitioner’s claim of retaliation presented a question of credibility for the Hearing Officer to resolve (see Matter of Carrington v Goord, 20 AD3d 835, 835 [2005]). His assertion that he was not provided with an adequate Spanish-speaking interpreter is belied by the record (see Matter of Quintana v Goord, 284 AD2d 758, 758 [2001], lv denied 97 NY2d 605 [2001]). Petitioner’s remaining contentions have not been preserved for our review. Cardona, EJ., Peters, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.