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

IN RE: Ignacio REYNOSO, Petitioner, v. Philip COOMBE Jr., as Commissioner of Correctional Services, et al., Respondents.

Decided: January 28, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Ignacio Reynoso, Elmira, petitioner in person. Eliot Spitzer, Attorney-General (Lyssa M. Sampson of counsel), New York City, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was found guilty of intentionally exposing his private body parts in violation of a prison disciplinary rule.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination on various grounds.1  Because our review of the record discloses no basis for disturbing the administrative determination, we confirm.

 Initially, we reject petitioner's contention that the determination of his guilt is not supported by substantial evidence.   Among the evidence produced at petitioner's disciplinary hearing was the detailed misbehavior report stating that petitioner was observed masturbating in front of two correction officers.   The report, together with the corroborating testimony of the correction officers who witnessed the incident and signed the misbehavior report, constitutes substantial evidence of petitioner's guilt (see, Matter of Burgos v. Commissioner of N.Y. State Dept. of Correctional Servs., 252 A.D.2d 698, 677 N.Y.S.2d 802;  Matter of Richardson v. Coombe, 231 A.D.2d 789, 647 N.Y.S.2d 577).   Petitioner's contention that the correction officers fabricated the charge merely created a credibility issue for the Hearing Officer to resolve.

 Finally, to the extent that petitioner's procedural arguments are preserved for our review, we find them to be lacking in merit.   Petitioner has failed to demonstrate that his employee assistant was inadequate inasmuch as the record discloses that the assistant conducted a thorough investigation and secured the testimony of all of the witnesses requested by petitioner (see, Matter of Barner v. Goord, 252 A.D.2d 719, 677 N.Y.S.2d 803, lv. denied 92 N.Y.2d 813, 681 N.Y.S.2d 474, 704 N.E.2d 227;  Matter of Eckert v. Selsky, 247 A.D.2d 728, 669 N.Y.S.2d 95).   Moreover, contrary to petitioner's contentions, the record indicates that the Hearing Officer was properly designated to conduct the hearing in accordance with 7 NYCRR 254.1 and that petitioner's administrative appeal was determined in compliance with 7 NYCRR 254.8.   Petitioner's remaining arguments are either unpreserved for our review or lacking in merit.

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


1.   Supreme Court initially granted respondents' motion to dismiss the petition and, concluding that respondents should have been afforded an opportunity to serve an answer before Supreme Court addressed the merits of the proceeding, we reversed and remitted the matter for that purpose (241 A.D.2d 738, 663 N.Y.S.2d 1016).   After respondents filed an answer to the petition with relevant exhibits, the matter was transferred to this court.



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