Burgos v. Commissioner of New York State Department of Correctional Services

—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 respondent which found petitioner guilty of violating a prison disciplinary rule. Petitioner was found guilty of violating the prison disciplinary rule which prohibits inmates from engaging in sexual acts. Received into evidence at petitioner’s disciplinary hearing was the detailed misbehavior report authored by the facility librarian who observed petitioner masturbating at the end of a set of library shelves. This report, coupled with the librarian’s corroborating testimony in which she explicitly described the incident, was sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Osborne v McGinnis, 243 AD2d 882). Petitioner’s explanation for his conduct merely created a credibility issue which the Hearing Officer was free to resolve against him (see, Matter of Jiminez v Berry, 203 AD2d 815, lv denied 84 NY2d 808). Finally, petitioner’s contention that the Hearing Officer considered his prior conduct in assessing his credibility and as evidence of guilt finds no support in the record. While the record does show that the Hearing Officer did consider petitioner’s history of similar behavior in determining the appropriate penalty, such consideration was proper (see, Matter of Edmonson v Coombe, 247 AD2d 693; Matter of Hart v Coombe, 229 AD2d 754, 755, lv denied 89 NY2d 802). White, J. P., Yesawich Jr., Peters, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.