IN RE: Damone COLE (2000)

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner, a prison inmate, was found guilty of refusing a direct order, interference with a facility employee, possession of contraband and smuggling.   The misbehavior report alleged that petitioner, while on drug watch, indicated to a correction officer that he had to use the bathroom.   Petitioner was instructed to keep his hands in plain view.   Thereafter, petitioner allegedly made a quick movement toward his anal area and was ordered by the correction officer to stop.   Petitioner, however, lunged toward the toilet with either a balloon or condom, ripped through the plastic covering the toilet and flushed the contraband down the toilet.

Contrary to petitioner's contention, the detailed misbehavior report, combined with petitioner's own testimony, provide substantial evidence to support the finding of his guilt (see, Matter of Greene v. Couture, 264 A.D.2d 915, 696 N.Y.S.2d 99).   Petitioner's claim that he lost his balance while using the bathroom and never ripped the plastic in order to flush something down the toilet merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Rosario v. Goord, 265 A.D.2d 714, 696 N.Y.S.2d 573).

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

MEMORANDUM DECISION.