Rizzuto v. Murphy , 770 N.Y.S.2d 905 ( 2004 )

Appeal from a judgment of the Supreme Court (Benza, J.), entered March 27, 2002 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CFLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

After being charged with violating three prison disciplinary rules following a search of petitioner and his cell, petitioner was ultimately found guilty of violating the prison disciplinary rule which prohibits the possession of contraband based upon petitioner’s possession of a list identifying correction officers’ names and two-way radio numbers. Thereafter, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

Initially, we note that inasmuch as the petition raised an issue of substantial evidence, the proceeding should have been transferred to this Court pursuant to CPLR 7804 (g). In any event, we shall treat the matter as properly transferred and decide the issue de novo (see Matter of Morales v Selsky, 281 AD2d 658 [2001], lv denied 96 NY2d 713 [2001]). Turning to the merits, we reject petitioner’s contention that there is insufficient evidence to support the determination of guilt. The misbehavior report written by the correction officer who discovered the list of correction facility staff and two-way radio communication numbers in petitioner’s possession provides substantial evidence to support the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]). Although petitioner claimed that the list was planted on him in retaliation for numerous grievances he had filed against the correction facility staff, he declined to call any witnesses and the Hearing Officer was free to credit the version of events charged in the misbehavior report (see Matter of Perez v Wilmot, 67 NY2d 615, 617 [1986]; Matter of Melluzzo v Goord, 250 AD2d 893, 894 [1998], lv denied 92 NY2d 814 [1998]).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.