IN RE: Jesus DE ARMAS (2001)

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits the commission of an unhygienic act.   The correction officer who authored the misbehavior report related therein that he was conducting a routine search of petitioner's cube when he came upon two containers of yellow fluid.   Petitioner explained that the fluid was urine that he was collecting for use in an experiment.

Included in the evidence presented at petitioner's disciplinary hearing was the misbehavior report and the eyewitness testimony given by the reporting correction officer.   Petitioner also gave testimony wherein he admitted that one of the containers found in his cell contained urine.   He stated that the container had been issued to him by infirmary personnel 18 months earlier following knee surgery so that he would not have to walk to the toilet while he was feeling dizzy from postsurgery medication.   A nurse administrator from the infirmary who was familiar with petitioner's medical records gave contrary testimony, stating that the infirmary does not give out urine collection containers and that petitioner was no longer taking any medication.

We conclude that the determination of petitioner's guilt was supported by substantial evidence (see, Matter of Jenkins v. Coombe, 240 A.D.2d 825, 658 N.Y.S.2d 539).   The discrepancies between the testimony given by petitioner and that of the nurse administrator presented an issue of credibility that was resolved in the discretion of the Hearing Officer (see, Matter of Wood v. Selsky, 237 A.D.2d 843, 655 N.Y.S.2d 181).   Petitioner's remaining contentions, including his allegation of Hearing Officer bias, have been reviewed and found to be without merit.

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