IN RE: Dino PHILLIPS (1998)

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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged with violating prison disciplinary rules which prohibit inmates being out of place, giving false statements or information and leaving an assigned area without authorization.   After a tier III hearing, petitioner was found guilty of being out of place.   After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm.   The misbehavior report, which was signed by the correction officer who authored the report as well as two other correction officers and a teacher at the facility, stated that the teacher found petitioner in the school when he was not authorized to be there;  the report also stated that petitioner said he was in the school because he wanted to see the teacher.   An interdepartmental communication report describing the incident corroborated the misbehavior report.   In our view, the misbehavior report, the interdepartmental report and petitioner's testimony, combined with the inferences that can be drawn therefrom, constitute substantial evidence of petitioner's guilt (see, Matter of Spencer v. Goord, 245 A.D.2d 827, 666 N.Y.S.2d 327, lv. denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E.2d 884).   Petitioner's testimony to the contrary, including his excuse as to why he had been in the school, merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;   Matter of Abdul-Matiyn v. Commissioner, State of N.Y., Dept. of Correctional Servs., 250 A.D.2d 1009, 673 N.Y.S.2d 257).   Accordingly, the determination should be left undisturbed.

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

MEMORANDUM DECISION.