Cooper v. Artuz

—In a proceeding pursuant to CPLR article 78 to annul a determination of C. Artuz, the Superintendent of the Green Haven Correctional Facility, dated June 23, 1993, which affirmed a decision of a Hearing Officer dated April 12, 1993, after a Tier III Superintendent’s hearing, finding the petitioner-respondent guilty of using a controlled substance in violation of 7 NYCRR 270.2 (B) (14) (iii) and imposing penalties, the appeal is from (1) a judgment of the Supreme Court, Dutchess County (Bernhard, J.), dated January 19,1994, which granted the petition and annulled the determination [539] and (2) so much of an order of the same court entered September 6, 1994, as, upon reargument, adhered to the original determination. Ordered that the appeal from the judgment dated January 19, 1994, is dismissed as the judgment was superseded by the order entered September 6, 1994, made upon reargument; and it is further, Ordered that the order entered September 6, 1994, is reversed, without costs or disbursements, the judgment is vacated, the petition is denied, and the proceeding is dismissed on the merits. The evidence adduced at the administrative hearing presented credibility issues which the Hearing Officer was free to resolve against the petitioner (see, Matter of Perez v Wilmot, 67 NY2d 615; Matter of Valera v Selsky, 185 AD2d 481; Matter of Lewis v Coughlin, 172 AD2d 889). Bracken, J. P., O’Brien, Joy and Florio, JJ., concur.