Rivera v. Selsky

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 was found guilty at the conclusion of a tier III disciplinary hearing of extortion and making threats. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination. We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report ánd testimony adduced at the hearing (see Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943 [2007]). Although the correction officer who authored the misbehavior report did not actually witness the incident in question, he investigated the matter and was able to ascertain the underlying facts (see Matter of Mendez v Goord, 21 AD3d 1191, 1192 [2005]). Petitioner’s denial that the incident occurred created a credibility issue for resolution by the Hearing Officer (see Matter of Ramirez v Goord, 32 AD3d 601, 601 [2006]). Finally, we reject petitioner’s contention that he was improperly denied the right to call a character witness (see Matter of Krivoi v Selsky, 284 AD2d 677, 678 [2001]). Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., [1211] concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.