IN RE: Douglas LEE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Douglas LEE, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: January 25, 2007

Before:  MERCURE, J.P., SPAIN, CARPINELLO, MUGGLIN and KANE, JJ. Douglas Lee, Fallsburg, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 solicitation, lying and unauthorized legal assistance.   Following a tier III disciplinary hearing, petitioner was found guilty of all charges.   After an administrative appeal, the determination was affirmed with reduced penalties.   Petitioner commenced this CPLR article 78 proceeding challenging the determination.

 We confirm.   The misbehavior report, together with correspondence to and from petitioner, a signed witness interview statement and the testimony of a correction investigator, provide substantial evidence supporting the determination of guilt (see Matter of Price v. Goord, 29 A.D.3d 1203, 1204, 814 N.Y.S.2d 409 [2006];  Matter of Vizcaino v. Selsky, 26 A.D.3d 574, 808 N.Y.S.2d 825 [2006], lv. denied 7 N.Y.3d 708, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ).   Petitioner's exculpatory statements as to the nature of his acts and his witness's testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002];  Matter of McGoey v. Selsky, 260 A.D.2d 814, 815, 689 N.Y.S.2d 253 [1999] ).

 Petitioner's procedural objections are unpersuasive.   The record demonstrates that petitioner's noninmate witness refused to testify and that the Hearing Officer personally ascertained that the refusal was genuine;  thus, petitioner was not deprived of his right to call witnesses (see Matter of Williams v. Goord, 242 A.D.2d 842, 662 N.Y.S.2d 617 [1997] ). Petitioner was properly denied two witnesses who had no personal knowledge of the charges and whose testimony would have been irrelevant (see Matter of Caraway v. Herbert, 285 A.D.2d 778, 726 N.Y.S.2d 825 [2001] ).   Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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

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