IN RE: Thomas McNULTY (2008)

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.

As a result of having attempted to walk away from the prison's medication window with medication hidden under his tongue, petitioner was charged in a misbehavior report with, among other things, smuggling.   Following a tier III disciplinary hearing, he was found guilty of that charge.   The determination of guilt was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm.   Contrary to petitioner's assertion, the determination in issue is supported by substantial evidence in the form of the misbehavior report and hearing testimony from the nurse involved in the incident (see Matter of Bonez v. McGinnis, 305 A.D.2d 814, 815, 758 N.Y.S.2d 543 [2003] ).   To the extent that the record contains conflicting evidence, credibility issues were created for resolution by the Hearing Officer (see Matter of Roman v. Selsky, 42 A.D.3d 721, 721, 838 N.Y.S.2d 452 [2007], lv. denied 9 N.Y.3d 815, 849 N.Y.S.2d 31, 879 N.E.2d 171 [2007] ).   Petitioner's remaining contentions, including his claim that the misbehavior report was not issued in a timely manner, have been considered and found to be unavailing.

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