Perez v. Goord , 759 N.Y.S.2d 920 ( 2003 )

—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 was found guilty of violating the prison disciplinary rules prohibiting possession of marihuana and smuggling. As related in the misbehavior report, a correction officer observed petitioner on the bleachers in the facility’s gymnasium passing a hand-rolled cigarette to another inmate. The cigarette was confiscated and subsequent laboratory testing identified its contents as marihuana.

Included in the evidence presented at petitioner’s disciplinary hearing were the misbehavior report, the positive laboratory test results, and the identification testimony of the correction officer who had observed petitioner sharing a cigarette with fellow inmates. The misbehavior report was written by this officer and endorsed by the correction officers who confiscated the cigarette and conducted the laboratory testing, respectively. We find this sufficient to constitute substantial evidence of petitioner’s guilt (see Matter of Anderson v Selsky, 297 AD2d 867 [2002]; Matter of Powell v Goord, 293 AD2d 846 [2002]). Petitioner’s testimony and that of his inmate witness asserting petitioner’s innocence presented issues of credibility which the Hearing Officer was free to resolve against petitioner (see Matter of Sanchez v Goord, 290 AD2d 623, 624 [2002]). The remaining issues raised herein, to the extent that they have been preserved for our review, are without merit.

Mercure, J.P., Crew III, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.