IN RE: Edwin ZAYES

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

IN RE: Edwin ZAYES, Petitioner, v. Glenn S. GOORD, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.

Decided: January 27, 2000

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and MUGGLIN, JJ. Edwin Zayes, Auburn, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

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

Following a tier III hearing, petitioner, a prison inmate, was found guilty of creating a disturbance, violent conduct and possession of a weapon.   Upon administrative review, the determination was modified and the charge of possession of a weapon was dismissed and petitioner's penalty was reduced.   Thereafter, petitioner commenced this CPLR article 78 proceeding contending that the determination of guilt was not supported by substantial evidence.   This proceeding was subsequently transferred to this court.

 The detailed misbehavior report, authored by a correction officer who investigated the incident, together with the testimony of another correction officer who cosigned the misbehavior report, petitioner's own admissions and the confidential information offered, were sufficiently relevant and probative to support the determination of petitioner's guilt even though some of the evidence may have been based upon hearsay (see, Matter of Parker v. Goord, 247 A.D.2d 694, 668 N.Y.S.2d 754).   Furthermore, the Hearing Officer was free to resolve any conflicting testimony against petitioner (see, Matter of Nieves v. Selsky, 263 A.D.2d 795, 694 N.Y.S.2d 796).   Petitioner's remaining contentions have been examined and found to be without merit.

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

MEMORANDUM DECISION.

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