MULLADY v. GOORD (2000)

 Petitioner was charged with violating various inmate rules as a result of his possession of a piece of plexiglass, which he had cut from a larger piece of plexiglass in the weld shop.   Petitioner contends that the determination is not supported by substantial evidence because there is no direct evidence that he possessed the Plexiglas.   Contrary to petitioner's contention, a determination may be supported by evidence that is entirely circumstantial (see, Matter of Mullen v. Goord, 267 A.D.2d 1040, 700 N.Y.S.2d 782;  Matter of Fereira v. Coombe, 239 A.D.2d 905, 659 N.Y.S.2d 620).   The determination “ ‘is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs' ” (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997, quoting National Labor Relations Bd. v. Remington Rand, 2d Cir., 94 F.2d 862, 873, cert. denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540).

 Petitioner further contends that the Hearing Officer erred in rejecting the testimony of the inmate witnesses as being unbelievable.   The issue of credibility is for the Hearing Officer to resolve (see, Matter of Bonettis v. Goord, 267 A.D.2d 959, 700 N.Y.S.2d 923;  Matter of Hawkins v. Coombe, 225 A.D.2d 1095, 1096, 639 N.Y.S.2d 634).   Although the Hearing Officer referred to testimony taken at other related hearings, the record does not support petitioner's further contention that the Hearing Officer relied on that testimony in support of his determination.   Thus, the Hearing Officer was not required to provide petitioner with a transcript or recording of that testimony (cf., Matter of Lonski v. Coughlin, 126 A.D.2d 981, 982, 511 N.Y.S.2d 757).   Finally, petitioner contends that he was denied his right to present documentary evidence, namely, misbehavior reports relating to other inmates involved in the same incident.   Although a petitioner may be entitled to the misbehavior reports of other inmates if they are relevant to the incident in question and refer to petitioner's activities (see, Matter of Cowart v. Coughlin, 193 A.D.2d 887, 888, 597 N.Y.S.2d 821), the only misbehavior report requested by petitioner was, in fact, identical to petitioner's misbehavior report.   Thus, petitioner was not prejudiced by the denial of his request.

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: