Coleman v. Harko

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review a determination of the Superintendent of Great Meadow Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

The misbehavior report was written by the correction officer who saw petitioner "passing an article amongst five or six muslim inmates” while the correction officer was supervising their activities from a sergeant’s stand. A frisk of petitioner revealed a book titled "Essentials of Muslim Prayer”. The correction officer also testified that while he did not hear what petitioner was saying, he observed that petitioner was the "main speaker”, that the book was the main topic of discussion and that it was being passed around as petitioner talked with the inmates. Under the circumstances, the misbehavior report, coupled with the testimony, constituted substantial evidence to support the determination that petitioner violated the prison rule prohibiting unauthorized religious services, speeches or addresses (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). The testimony by petitioner and his witnesses that they were discussing a movie presented a question of credibility for the Hearing Officer to resolve (see, Matter of Hernandez v LeFevre, 150 AD2d 954, lv denied 74 NY2d 615). There is also no support in the record for petitioner’s contention that the Hearing Officer was biased or any proof that the hearing’s outcome flowed from the alleged bias (see, Matter of Nieves v Coughlin, 157 AD2d 943). Petitioner’s remaining contentions have been examined and rejected as lacking in merit.

Mikoll, J. P., Yesawich Jr., Levine, Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.