IN RE: Javares BATTS (2009)

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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit smuggling and possession of a controlled substance after a search of his cell disclosed a green leafy substance that later tested positive for marihuana.   Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed.   Petitioner's administrative appeal was unsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 to challenge respondent's determination.

 The misbehavior report, together with the contraband receipt and the hearing testimony, constitute substantial evidence of petitioner's guilt (see Matter of Pulliam v. Goord, 45 A.D.3d 1158, 1158, 844 N.Y.S.2d 915 [2007];  Matter of Rios v. Selsky, 32 A.D.3d 632, 633, 819 N.Y.S.2d 622 [2006] ).   To the extent that petitioner contended that the drugs were not his and had been planted by facility personnel, his assertions presented a credibility issue for the Hearing Officer to resolve (see Matter of Yancey v. Conway, 46 A.D.3d 1042, 1042, 847 N.Y.S.2d 282 [2007];  Matter of Diaz v. Goord, 26 A.D.3d 561, 562, 807 N.Y.S.2d 730 [2006] ).   In light of the hearing testimony and contraband receipt, which established that the cell was searched and free of contraband prior to petitioner's entry, the failure to record the search in the relevant log book does not warrant annulment (see Matter of Chapman v. Goord, 49 A.D.3d 944, 945, 853 N.Y.S.2d 212 [2008] ).   Petitioner's remaining contentions, including his assertion that his administrative appeal was not decided in a timely fashion, have been examined and found to be lacking in merit.

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