IN RE: Faris ABDUL-MATIYN

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

IN RE: Faris ABDUL-MATIYN, Appellant, v. COMMISSIONER, STATE of New York, DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Decided: May 21, 1998

Before CARDONA, P.J., and MERCURE, CREW, YESAWICH and PETERS, JJ. Faris Abdul-Matiyn, Woodbourne, appellant in person. Dennis C. Vacco, Attorney General (Katharine Demgen, of counsel), New York City, for respondent.

Appeal from a judgment of the Supreme Court (La Buda, J.), entered January 31, 1997 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Following a tier II hearing, petitioner, an inmate at Woodbourne Correctional Facility in Sullivan County, was found guilty of violating a prison disciplinary rule prohibiting being out of place.   The determination was affirmed upon administrative appeal, and petitioner commenced this CPLR article 78 proceeding to annul the administrative determination on the ground that it was not supported by substantial evidence.   Supreme Court affirmed the determination and dismissed the petition.

 Prefatorily, we note that Supreme Court should have transferred this proceeding to this court since the issue raised is whether the determination was supported by substantial evidence (see, CPLR 7804[g];  Matter of Smith v. Coughlin, 111 A.D.2d 503, 504, 488 N.Y.S.2d 885).   However, since the matter is now before us, we may decide the issue as if it had been properly transferred here initially (see, id.).

 Upon our review of the record, we find that respondent's determination was amply supported by substantial evidence (see, Matter of Ingram v. Mann, 219 A.D.2d 743, 631 N.Y.S.2d 191).   The evidence against petitioner included the misbehavior report authored by the correction officer who found petitioner in the prerelease center (hereinafter the center) when he was not on “call-out” and when pre-release was not part of his program.   In addition, the correction officer who allegedly gave petitioner permission to go to the center testified that he only gave petitioner permission to go to the bathroom and that while petitioner informed him that he was also going to go to the center, he believed that petitioner had a “call-out” and, therefore, that he belonged in the center but that he never gave petitioner permission to go there.   This correction officer further testified that if he had given petitioner permission to go to the center, he would have, according to procedure, called ahead to the officers in the center to let them know petitioner had his permission to be there.   Moreover, the coordinator of the center testified that although the center was available to all inmates, they needed permission to go there.

We find, therefore, that petitioner's contention that he received permission to go to the center was not supported by the evidence (see, Matter of Slack v. Leonardo, 195 A.D.2d 892, 600 N.Y.S.2d 824) and, in any event, “merely raised questions of credibility for respondent to resolve” (Matter of Crandell v. Mitchell, 191 A.D.2d 782, 783, 594 N.Y.S.2d 418).   We have considered petitioner's other contentions and find them to be without merit.

ORDERED that the judgment is affirmed, without costs.

PETERS, Justice.

CARDONA, P.J., and MERCURE, CREW and YESAWICH, JJ., concur.

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