Gonzalez v. Goord

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with providing false information to correction officers after an investigation revealed that, contrary to his representations, he was never legally divorced from his former wife. The investigation arose after petitioner’s former wife called the correctional facility in connection with pending divorce proceedings which she had initiated and correction officers spoke with petitioner, who had since remarried, about his marital status. Petitioner was found guilty of the charge following a tier III disciplinary hearing and the determination was upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging it.

We confirm. The misbehavior report, together with the testimony of the correction counselor who prepared it and the documentary evidence establishing that petitioner was aware that he was not, in fact, divorced at the time that he was questioned by correction officials, provide substantial evidence supporting the determination of guilt (see Matter of Vourderis v Selsky, 4 AD3d 667, 668 [2004]; Matter of Pabon v Goord, 275 AD2d 824, 824 [2000]). Petitioner’s testimony that he thought he was divorced presented a question of credibility for the Hearing Officer to resolve (see Matter of Spulka v Goord, 12 AD3d 1004, 1005 [2004]; Matter of Burr v Goord, 284 AD2d 881, 882 [2001]). As his remaining contentions were neither raised at the disciplinary hearing nor on administrative appeal, they have not been preserved for our review (see Matter of Quezada v Goord, 19 AD3d 964, 965 [2005]; Matter of Black v Goord, 12 AD3d 1005, 1006 [2004]).

Cardona, P.J., Mercure, Mugglin, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.