IN RE: Nicholas DE MATTEIS (2005)

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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating facility package procedures and the prison disciplinary rule prohibiting smuggling after an unauthorized powdered dietary supplement, along with the directions for its use, were discovered disguised as Kool-Aid in a package sent to petitioner by his cousin.   Contrary to petitioner's contention, the misbehavior report and the letter from his cousin outlining the directions for the use of the supplement, combined with his admission at the hearing that he had spoken to his cousin about the supplement and had requested the directions for its use, provide substantial evidence of petitioner's guilt (see Matter of Sartori v. Selsky, 297 A.D.2d 839, 839-840, 746 N.Y.S.2d 848 [2002];  Matter of Nunez v. Selsky, 276 A.D.2d 962, 962, 715 N.Y.S.2d 918 [2000] ).   Petitioner's assertion that he requested the directions but not the supplement raised a credibility issue for the Hearing Officer to resolve (see Matter of Herrera-Martinez v. Selsky, 294 A.D.2d 633, 634, 740 N.Y.S.2d 889 [2002];  Matter of Nunez v. Selsky, supra at 962, 715 N.Y.S.2d 918).   Petitioner's remaining contentions, including the claim that the Hearing Officer was biased, have been considered and are rejected.

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