IN RE: Billy McNAIR (1999)

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of lewd exposure in violation of a prison disciplinary rule after a correction officer witnessed petitioner masturbating in his cell.   Contrary to petitioner's assertion, the misbehavior report, together with the testimony of the correction officer who authored the misbehavior report after observing petitioner's conduct, provides substantial evidence of petitioner's guilt (see, Matter of Reynoso v. Coombe, 257 A.D.2d 921, 684 N.Y.S.2d 672, lv. denied 93 N.Y.2d 806, 689 N.Y.S.2d 707, 711 N.E.2d 983).   Petitioner's exculpatory explanation, that he was merely applying medicine due to a medical condition, presented a credibility issue for resolution by the Hearing Officer (see, Matter of Burgos v. Commissioner of N.Y. State Dept. of Correctional Servs., 252 A.D.2d 698, 677 N.Y.S.2d 802).   Furthermore, we reject petitioner's allegation of Hearing Officer bias, as the record fails to establish that the outcome of the hearing flowed from any bias.

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

MEMORANDUM DECISION.