Miller v. Portuondo

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from making an unauthorized exchange of an item after a correction officer observed him passing an unidentified object to another inmate in an area where no exchanges were permitted. The other inmate was frisked and packets containing narcotics were discovered. The determination of guilt was affirmed upon petitioner’s administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding and we confirm. Contrary to petitioner’s contention, we find that the misbehavior report, which we conclude was sufficiently detailed and referenced the correct rule violation, combined with the witness testimony, provide substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Mays v Goord, 243 AD2d 882, 883). We reject petitioner’s argument that the fact that he was found not guilty of a drug violation required dismissal of the exchange charge. This result [647] can be reconciled by the fact that the Hearing Officer gave petitioner the benefit of the doubt that the unidentified item he passed to the other inmate was not drugs, despite the fact that the other inmate was immediately frisked and found to be in possession of narcotics. In any event, although petitioner denied participating in an unauthorized exchange, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Petitioner’s remaining arguments have been examined and found to be similarly unpersuasiye. Cardona, P. J., Her cure, Crew III, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.