IN RE: Jose RIVERA (2002)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting lewd exposure after a facility nurse witnessed petitioner masturbating in his cell. Contrary to petitioner's contention, the misbehavior report, authored by the nurse who witnessed the incident, and petitioner's own admissions regarding his conduct constitute substantial evidence supporting the determination of guilt (see, Matter of Green v. Goord, 284 A.D.2d 677, 728 N.Y.S.2d 210;  Matter of McMillian v. Selsky, 268 A.D.2d 936, 702 N.Y.S.2d 679).   Petitioner's assertion that the incident was unintentional as he was unaware that the nurse was still making her rounds presented a credibility issue which the Hearing Officer resolved against him (see, Matter of McMillian v. Selsky, supra ).

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