Sheller v. Bezio

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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules. After petitioner, a prison inmate, was observed looking down the blouse of a female correction counselor, he was charged in a misbehavior report with stalking, harassment and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of harassment. That determination was affirmed upon administrative review, after which petitioner commenced this CPLR article 78 proceeding. We confirm. The misbehavior report and testimony of the correction counselor provide substantial evidence to support the 959 determination of guilt (see Matter of Cruz v Walsh, 87 AD3d 1234, 1234-1235 [2011]; Matter of Crenshaw v Fischer, 87 AD3d 1246, 1247 [2011]). Minor discrepancies between the report and the testimony raised questions of credibility to be resolved by the Hearing Officer (see Matter of Polite v Fischer, 87 AD3d 1212, 1212 [2011]; Matter of Williams v Fischer, 84 AD3d 1661, 1662 [2011], lv denied 17 NY3d 711 [2011]). The remainder of petitioner’s contentions are unpreserved for review by virtue of his failure to raise them at the hearing or in his administrative appeal (see Matter of Crenshaw v Fischer, 87 AD3d at 1247; Matter of Kalwasinski v Fischer, 87 AD3d 1207, 1208 [2011]). Peters, J.P, Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.