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

IN RE: Anthony LaFONTANT, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: May 29, 2008

Before:  CARDONA, P.J., SPAIN, CARPINELLO, KANE and STEIN, JJ. Anthony LaFontant, Napanoch, 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 a prison disciplinary rule.

After a female correction officer observed petitioner sitting on his bed and masturbating with his penis exposed, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting lewd conduct.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged.   That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, together with the hearing testimony from the authoring correction officer, constitute substantial evidence to support the determination of guilt (see Matter of Rodriguez v. Selsky, 47 A.D.3d 1173, 1173, 849 N.Y.S.2d 734 [2008] ).   Petitioner's assertion that he was not masturbating but, instead, was providing himself with massage therapy for certain medical conditions created a credibility issue for resolution by the Hearing Officer (see Matter of Vigliotti v. Selsky, 45 A.D.3d 946, 946-947, 844 N.Y.S.2d 502 [2007], lv. denied 10 N.Y.3d 702, 853 N.Y.S.2d 543, 883 N.E.2d 370 [2008] ).   Petitioner's remaining contentions, including his claim that he was denied the right to present witness testimony, have been examined and, to the extent preserved, are unavailing.

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

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