IN RE: Miguel HARVEY

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Miguel HARVEY, Petitioner, v. R.K. WOODS, as Superintendent of Upstate Correctional Facility, et al., Respondents.

Decided: July 24, 2008

Before:  CARDONA, P.J., PETERS, ROSE, MALONE JR. and STEIN, JJ. Miguel Harvey, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

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, a prison inmate, was charged in two misbehavior reports with refusing a search, disobeying a direct order (two counts), violating movement regulations and committing an unhygienic act.   The first report arose out of petitioner's refusal to lift his feet to be scanned by a metal detector.   The second report stemmed from petitioner's refusal to return his restraints, which he had adjusted, to the proper position, as well as his spitting on the wall and floor.   Following a combined tier III disciplinary hearing, petitioner was found guilty of all charges.   Upon administrative appeal, that determination was affirmed with a modified penalty and this CPLR article 78 proceeding seeking annulment ensued.

 We confirm.   The determination of guilt is supported by substantial evidence in the form of the misbehavior reports, videotapes depicting petitioner's conduct and testimony adduced at the hearing (see Matter of Porter v. Goord, 47 A.D.3d 978, 979, 849 N.Y.S.2d 326 [2008] ).   Petitioner's claim of inconsistencies in the evidence, along with the exculpatory testimony offered by petitioner and his inmate witness, created credibility issues for resolution by the Hearing Officer (see Matter of Jones v. Goord, 50 A.D.3d 1427, 1427, 856 N.Y.S.2d 700 [2008] ).   We have reviewed petitioner's remaining contentions, including his claims that the hearing was untimely, the Hearing Officer was biased and he was denied two inmate witnesses, and find no reason to disturb the determination.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

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