IN RE: Anderson GARCIA (1999)

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 disciplinary hearing, petitioner, a prison inmate, was found guilty of engaging in a sexual act and violating visiting room procedures.   According to the misbehavior report, two correction officers witnessed petitioner's visitor fondling his groin and then place his penis back in his pants after one of the correction officers motioned petitioner to come over to the officer's station.   Petitioner's administrative appeal of the determination of guilt was unsuccessful, prompting the commencement of this CPLR article 78 proceeding.

We confirm.   In our view, the misbehavior report, combined with the eyewitness testimony of the author of the misbehavior report, provides substantial evidence to support the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Although petitioner offered an innocent explanation for the incident, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811, 669 N.Y.S.2d 403).   Petitioner's remaining contentions, including his claim of Hearing Officer bias, have been examined and, to the extent that they have been preserved for appellate review, found to be without merit.

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

MEMORANDUM DECISION.