Codrington v. Kelly

Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: Because the essential issue raised in this CPLR article 78 proceeding is whether the determination of the Hearing Officer is supported by substantial evidence, Special Term should not have decided the matter and instead, should have transferred it to this court (see, CPLR 7804 [g]). However, we may consider the matter as if it had been properly transferred (Matter of McKins v Coughlin, 142 AD2d 987). Whether Correction Officer Mussar authorized petitioner to delete names from the facility law library call-out list was a credibility issue for the Hearing Officer to resolve (Matter of Perez v Wilmot, 67 NY2d 615; Matter of McKins v Coughlin, supra; Matter of Summer v Kelly, 139 AD2d 972, lv denied 72 NY2d 804). The Hearing Officer credited Mussar’s version, and the Hearing Officer’s determination of guilt is supported by substantial evidence. (Appeal from judgment of Supreme Court, Wyoming County, Bayger, J. — art 78.) Present — Dillon, P. J., Callahan, Green, Balio and Lawton, JJ.