IN RE: Kevin CUNNINGHAM (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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

While a group of inmates were being shown a movie, a correction counselor observed petitioner with his hand inside his pants fondling himself.   He was charged in a misbehavior report with engaging in a sexual act.   Petitioner was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of the correction counselor who prepared it and witnessed the incident, provide substantial evidence supporting the determination of guilt (see Matter of Gee v. Goord, 21 A.D.3d 636, 637, 800 N.Y.S.2d 775 [2005];  Matter of Valentine v. Goord, 18 A.D.3d 997, 998, 794 N.Y.S.2d 692 [2005], lv. dismissed 5 N.Y.3d 816, 803 N.Y.S.2d 24, 836 N.E.2d 1146 [2005] ).   The contrary testimony of petitioner and some of the other inmates sitting near him presented a credibility issue for the Hearing Officer to resolve (see Matter of Quezada v. Goord, 19 A.D.3d 910, 911, 796 N.Y.S.2d 753 [2005] ).   Petitioner's claim of hearing officer bias has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Lunney v. Goord, 24 A.D.3d 1135, 807 N.Y.S.2d 196 [2005] ) or in his administrative appeal (see Matter of Cameron v. Goord, 10 A.D.3d 795, 796, 782 N.Y.S.2d 467 [2004] ).

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