IN RE: Herbert JOHNSON (1998)

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.

Petitioner, a prison inmate and a diabetic, was the subject of a misbehavior report charging that he refused to return a syringe taken from the prison infirmary.   Petitioner was subsequently found guilty of violating the prison disciplinary rules prohibiting refusal to obey a direct order and causing the loss of property.   Petitioner contends that the determination of his guilt was not based upon substantial evidence.   We disagree.   Presented in evidence at the disciplinary hearing was the misbehavior report and the testimony of the facility's nurse who stated that she gave petitioner a syringe so that he could administer his own insulin injection and that while she was distracted by a brief telephone call, petitioner left the room with the syringe which, although searched for, was never located.   This was sufficient to constitute substantial evidence of petitioner's guilt (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   Petitioner's denial of the allegations in question simply presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).

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

MEMORANDUM DECISION.