IN RE: Harvey MARCELIN (2001)

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit physical contact between inmates and the commission of sexual acts.   The reporting correction officer stated in the misbehavior report that he had observed petitioner standing in the corner of the telephone room engaged in an act of oral intercourse with another inmate.   Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the misbehavior report and the investigation memorandum (see, Matter of Gonzalez v. Goord, 272 A.D.2d 797, 708 N.Y.S.2d 923, appeal dismissed, lv. dismissed 96 N.Y.2d 728, 722 N.Y.S.2d 791, 745 N.E.2d 1013;  Matter of Garcia v. Goord, 261 A.D.2d 674, 690 N.Y.S.2d 169, appeal dismissed, lv. dismissed 94 N.Y.2d 834, 703 N.Y.S.2d 66, 724 N.E.2d 761).   The exculpatory testimony given by petitioner's inmate witnesses, as well as petitioner's own testimony, in which he asserted his innocence and alleged that he had been “set up” by the reporting correction officer, presented issues of credibility that were resolved in the discretion of the Hearing Officer (see, Matter of Garnette v. Goord, 270 A.D.2d 536, 703 N.Y.S.2d 759).   Petitioner's remaining contentions, including his assertions of procedural errors and Hearing Officer bias, have been reviewed and found to be without merit.

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