IN RE: Mark PRICE

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

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

Decided: January 30, 2003

Before:  CARDONA, P.J., PETERS, SPAIN, ROSE and LAHTINEN, JJ. Mark Price, Ossining, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Andrea Oser 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 challenges a determination of respondent finding him guilty of violating the disciplinary rules against smuggling, drug possession and violating visiting room procedures.   According to the misbehavior report, while petitioner was in the visiting room area, he was observed reaching in his pants and placing something in the container of chicken in front of him.   Upon investigating, a red balloon filled with marihuana was found in the chicken container.   Contrary to petitioner's contention, the misbehavior report, the videotape and the testimony at the hearing, together with the inferences to be drawn therefrom, provide substantial evidence of petitioner's guilt (see Matter of Morales v. Goord, 290 A.D.2d 790, 736 N.Y.S.2d 494;  see also Matter of Torres v. Coughlin, 213 A.D.2d 861, 624 N.Y.S.2d 67).   Petitioner's assertion that the container was not his created a credibility determination to be resolved by the Hearing Officer (see Matter of Morales v. Goord, supra ).   Furthermore, although the videotape does not show petitioner reaching in the back of his pants, as is related in the misbehavior report, other inmates were blocking the camera's view of petitioner.   Nevertheless, the videotape does capture petitioner's suspicious behavior.   Petitioner's remaining contentions, including that he was denied the opportunity to refute evidence at the hearing and his claim of hearing officer bias, have been reviewed and found to be without merit.

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

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