IN RE: Kenneth ACCARDI (2006)

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 and another inmate were assigned to unload pallets from a food delivery truck and bring them to the rear kitchen area.   They used a plastic recycling cart to discard shrink wrap.   While petitioner was working, a large quantity of food items missing from the truck were discovered in the recycling cart in close proximity to petitioner.   As a result, he was charged in a misbehavior report with stealing and smuggling.   He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

Substantial evidence, consisting of the misbehavior report and the testimony of correction officials and civilian employees, supports the determination of guilt (see Matter of Lopez v. Selsky, 28 A.D.3d 968, 968, 813 N.Y.S.2d 814 [2006];  Matter of Cummings v. Goord, 10 A.D.3d 748, 749, 781 N.Y.S.2d 708 [2004] ).   While petitioner denied taking the food items from the truck, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Charles v. Selsky, 13 A.D.3d 861, 862, 785 N.Y.S.2d 798 [2004] ).   The circumstances of the incident, including the timing of the theft and the location of the cart near petitioner and within his control, permitted the reasonable inference that petitioner took the food items notwithstanding the fact that another inmate was assisting him unload the truck (see e.g. Matter of Lopez v. Selsky, supra at 968, 813 N.Y.S.2d 814;  Matter of Cummings v. Goord, supra at 749, 781 N.Y.S.2d 708).   Therefore, we find no reason to disturb the determination at issue.

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