IN RE: NJERA WILSON (2017)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered February 28, 2017) to review two determinations of respondent.  The determinations found after tier III hearings that petitioner had violated various inmate rules.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations, following two separate tier III disciplinary hearings, that he violated various inmate rules.  The first determination concerned an incident that occurred on May 20, 2016, and the second determination concerned an incident that occurred on May 23, 2016.  Addressing first the determination related to the May 23, 2016 incident, we conclude that respondent correctly concedes that the determination finding that petitioner violated inmate rule 101.22 (7 NYCRR 270.2[B][2][v] [stalking] ) is not supported by substantial evidence.  We therefore grant the petition in part by annulling the determination finding that petitioner violated that inmate rule, and we direct respondent to expunge from petitioner's institutional record all references to that violation and to refund the $5 surcharge related thereto.

“ ‘In any event, the guilty plea constitutes substantial evidence of his guilt’ “ (Matter of Holdip v. Travis, 9 AD3d 825, 826;  see Matter of Liner v. Fischer, 96 AD3d 1416, 1417).

With respect to the remaining two inmate rules, the misbehavior report and the testimony of its author constitute substantial evidence that petitioner violated them (see generally Matter of Foster v Coughlin, 76 N.Y.2d 964, 966;  Vega, 66 N.Y.2d at 140).  Petitioner's testimony that he did not commit the violations “merely presented an issue of credibility that the Hearing Officer was entitled to resolve against him” (Green, 124 AD3d at 1339;  see Foster, 76 N.Y.2d at 966).

Mark W. Bennett

Clerk of the Court