IN RE: Harry CRUZ

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

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

Decided: June 28, 2007

Before:  CARDONA, P.J., MERCURE, SPAIN, MUGGLIN and KANE, JJ. Harry Cruz, Alden, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan 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.

As the result of an investigation, correction officers discovered that petitioner exchanged marihuana with his wife during a visit, asked her to repackage it and to bring it back to the correctional facility during a subsequent visit.   Petitioner was thereafter charged in a misbehavior report with smuggling and two counts of possessing or conspiring to possess drugs.   Following a tier III disciplinary hearing, he was found guilty of smuggling and one count of conspiring to possess drugs.   The determination was affirmed on administrative appeal with a modified penalty.   Petitioner then commenced this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, together with the testimony of its author and the considerable documentary evidence, provide substantial evidence supporting the determination of guilt (see Matter of Lovett v. Goord, 26 A.D.3d 563, 564, 807 N.Y.S.2d 728 [2006] ).   Petitioner's testimony that he was “set up” by his wife, sister and brother-in-law for failing to cooperate in their plan to smuggle drugs presented a credibility issue for the Hearing Officer to resolve (see Matter of Vann v. Goord, 308 A.D.2d 611, 612, 764 N.Y.S.2d 219 [2003] ).   Petitioner's procedural claims have either not been preserved for our review or are lacking in merit.

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

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