IN RE: Efrain SANCHEZ (2002)

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 certain prison disciplinary rules.

Following a hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit possession of marihuana and smuggling.   The correction officer who authored the misbehavior report testified that he had observed petitioner passing a white envelope to a second inmate.   He then took the envelope from the second inmate and found therein a substance that subsequent laboratory testing disclosed to be marihuana.   The misbehavior report and the testimony of the correction officer who wrote it based upon his eyewitness observations were sufficient to constitute substantial evidence of petitioner's guilt (see, Matter of Maldonado v. Goord, 270 A.D.2d 742, 704 N.Y.S.2d 383;  Matter of Alston v. Great Meadow Correctional Facility, 252 A.D.2d 697, 675 N.Y.S.2d 414).   Petitioner's testimony and that of his inmate witness claiming his innocence of the charged misconduct presented an issue of credibility that the Hearing Officer was free to resolve against petitioner (see, Matter of Roman v. Selsky, 270 A.D.2d 519, 705 N.Y.S.2d 88;  Matter of Davis v. Selsky, 270 A.D.2d 548, 704 N.Y.S.2d 677).   The remaining contentions raised herein, including petitioner's assertion of Hearing Officer bias, have been reviewed and found to be without merit.

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