IN RE: Frederick McMILLIAN

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

IN RE: Frederick McMILLIAN, Petitioner, v. Donald SELSKY, as Director of Special Housing Unit, New York Department of Correctional Services, et al., Respondents.

Decided: January 27, 2000

Before:  CARDONA, P.J., MERCURE, CREW III, GRAFFEO and MUGGLIN, JJ. Frederick McMillian, Gouverneur, 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 Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner, a prison inmate, was found guilty of lewd exposure in violation of a prison disciplinary rule after a nurse witnessed petitioner masturbating in his cell.   Although petitioner pleaded not guilty to the charge, he did admit that he was masturbating at the time of the incident and that the nurse did witness the incident.   He, however, contends that his exposure was unintentional and that he was unaware that his cellmate had made a sick call.   Contrary to petitioner's contentions, the misbehavior report, authored by the nurse who witnessed the incident, and petitioner's own admissions regarding his actions provide substantial evidence of petitioner's guilt (see, Matter of McNair v. Goord, 265 A.D.2d 716, 697 N.Y.S.2d 183).   Petitioner's explanation that the incident was unintentional and he was unaware that the nurse was making her rounds merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Jaime v. Goord, 262 A.D.2d 823, 692 N.Y.S.2d 756).   Petitioner's remaining contentions, including his challenge to the penalty imposed, have been examined and found to be without merit.

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


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