IN RE: Herbert BURGESS

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

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

Decided: June 22, 2006

Before:  CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ. Herbert Burgess, Malone, petitioner pro se. Eliot Spitzer, 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.

During a search of petitioner's cell, a number of items were recovered including, among other things, papers detailing the sale of food items, legal papers belonging to another inmate, five lottery tickets and certain gang-related materials.   As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange, possessing contraband, smuggling, misusing state property and possessing lottery tickets.   He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

The misbehavior report, together with the testimony of the correction officer who authored it and the confiscated materials, provide substantial evidence supporting the determination of guilt (see Matter of O'Connor v. Selsky, 24 A.D.3d 841, 842, 804 N.Y.S.2d 503 [2005];  Matter of Torres v. Goord, 306 A.D.2d 592, 593, 759 N.Y.S.2d 705 [2003], lv. denied 100 N.Y.2d 515, 769 N.Y.S.2d 201, 801 N.E.2d 422 [2003] ).   Petitioner's exculpatory testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Wright v. Goord, 19 A.D.3d 855, 855, 797 N.Y.S.2d 167 [2005], lv. denied 5 N.Y.3d 711, 804 N.Y.S.2d 35, 837 N.E.2d 734 [2005] ).   Petitioner's procedural claims have not been preserved for our review due to his failure to raise them at the disciplinary hearing.

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

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