IN RE: Luis COLON (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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from conspiring to or being an accessory to an escape, unauthorized exchanging of personal property and making false statements.   Substantial evidence of petitioner's guilt was established by the introduction in evidence of the misbehavior report, the testimony of the reporting officer, the testimony of the civilian employee in charge of the masonry building and the testimony of an investigator from the Inspector General's office (see, Matter of Rosario v. Goord, 265 A.D.2d 714, 696 N.Y.S.2d 573, appeal dismissed 95 N.Y.2d 822, 712 N.Y.S.2d 906, 734 N.E.2d 1207;  Matter of Pristell v. Goord, 238 A.D.2d 657, 658, 656 N.Y.S.2d 968).

From this document and the testimony, it was established that after a general count of the prison population on March 30, 2001, inmate James Visser was reported missing.   Subsequent investigation revealed that petitioner and Visser were friends and that a book belonging to Visser was in petitioner's cell.   Petitioner denied the friendship, but ultimately volunteered that Visser was hiding in the attic of the masonry building at the facility.   The masonry instructor testified that on the morning in question, petitioner had arrived unusually early and for a short time was unsupervised, giving him the opportunity to admit Visser to the building.   Visser was found precisely where petitioner said that he would be.   When interviewed, Visser disclosed that petitioner had instigated his escape attempt and had admitted him to the masonry building.

Petitioner's testimony, in which he asserted his innocence, presented an issue of credibility that was resolved in the discretion of the Hearing Officer (see, Matter of Kennedy v. Coombe, 236 A.D.2d 726, 654 N.Y.S.2d 422;  Matter of Di Rose v. New York State Dept. of Correction, 228 A.D.2d 868, 869, 644 N.Y.S.2d 577).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

MUGGLIN, J.

CARDONA, P.J., MERCURE, PETERS and ROSE, JJ., concur.