Opinion
92395
Decided and Entered: March 13, 2003.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Shawn Williams, Malone, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: Cardona, P.J., Crew III, Peters, Carpinello and, Kane, JJ.
MEMORANDUM AND JUDGMENT
Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules prohibiting refusing to obey a direct order, two charges of possession of contraband, commission of an unhygienic act and violation of mess hall procedures. The Attorney General has informed this Court that the determination finding petitioner guilty of refusing to obey a direct order and violating mess hall procedures has been administratively reversed. Accordingly, any claims relating to those charges are moot (see Matter of Martin v. Goord, 252 A.D.2d 720). Concerning the remaining violations, the misbehavior reports assert that petitioner was subjected to a strip frisk which divulged a latex glove secreted in his anus and that a subsequent search of petitioner's cell disclosed a substance believed to be Ajax cleansing powder and five beverage containers filled with urine.
We find that the determination of petitioner's guilt of the two charges of possession of contraband and commission of an unhygienic act was supported by substantial evidence in the form of the misbehavior reports and the testimony of the reporting correction officer who witnessed the events in question (see Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616-617; Matter of Gladden v. Selsky, 296 A.D.2d 680; Matter of Borcsok v. Selsky, 296 A.D.2d 678, lv denied 98 N.Y.2d 616). We further find that the Hearing Officer properly referenced the misbehavior reports as being evidence relied on in support of his determination. The conflicting testimony presented an issue of credibility to be resolved by the Hearing Officer (see Matter of Cruz v. Selsky, 288 A.D.2d 517, 518). The remaining contentions raised herein have been reviewed and found to be without merit or not raised in the petition (see Matter of Stanislas v. Senkowski, 253 A.D.2d 972).
Cardona, P.J., Crew III, Peters, Carpinello and Kane, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.