Garnette v. Goord

—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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner, a prison inmate, was charged with violating prison disciplinary rules prohibiting the commission of a sexual offense, lewd exposure and violating facility visitation regulations after a correction officer, having already warned petitioner about his behavior, witnessed petitioner’s visitor fondle his groin and thereafter noticed petitioner exposing his genitals. After a tier III hearing, petitioner was found guilty of these charges and, thereafter, commenced this CPLR article 78 proceeding to challenge the determination. We confirm. Contrary to petitioner’s assertion, the misbehavior report, together with the testimony of the correction officer who authored it after observing petitioner’s conduct, provide substantial evidence of petitioner’s guilt (see, Matter of McNair v Goord, 265 AD2d 716; Matter of Garcia v Goord, 261 AD2d 674, lv dismissed 94 NY2d 834). Although petitioner contended that he never exposed himself, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Garcia v Goord, supra). To the extent that petitioner’s remaining contentions have been preserved for our review, we find them to be without merit. Cardona, P. J., Mercure, Crew III, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.