McCloud v. Selsky

1128 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. During an investigation, a correction officer discovered evidence indicating that petitioner was using another inmate’s personal identification number to make telephone calls to that inmate’s mother and that he was in possession of gambling paraphernalia. As a result, petitioner was charged in a misbehavior report with gambling, exchanging personal identification numbers and extortion. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of the first two charges but not guilty of the third charge. The determination was affirmed on administrative appeal with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding. We confirm. Initially, we note that although portions of the hearing transcript are inaudible and others appear to be out of order, it is not so incomprehensible or incomplete as to preclude meaningful review (see Matter of Frazier v Artus, 40 AD3d 1288, 1288 [2007]; Matter of McIver v Goord, 37 AD3d 943, 944 [2007]). Turning to the merits, the misbehavior report, together with the testimony of the correction officer who prepared it, provide substantial evidence supporting the determination of guilt (see Matter of Rosario v Selsky, 37 AD3d 921, 921 [2007]; Matter of McEwen v Goord, 32 AD3d 1116, 1117 [2006]). Petitioner’s testimony that he spoke with the inmate’s mother during a telephone call made by that inmate using his own personal identification number and that he did not possess gambling materials presented a credibility issue for the Hearing Officer to resolve (see Matter of Spulka v Selsky, 36 AD3d 1183, 1184 [2007]). His remaining contentions have not been preserved for our review. Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.