IN RE: Delroy KEMP

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

IN RE: Delroy KEMP, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: November 29, 2001

Before:  PETERS, J.P., SPAIN, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Delroy Kemp, Alden, petitioner pro se. Eliot Spitzer, Attorney General (Alicia R. Ouellette of counsel), Albany, 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating prison disciplinary rules which prohibit assault on a staff member and possession of unauthorized organizational material.   As related in the misbehavior report, a search by correction officers of petitioner's cell disclosed a six-page letter containing references to an unauthorized inmate organization known as the Bloods.   The reporting correction officer confiscated the pages and put them in his shirt pocket.   Petitioner then reached through the bars, pulled the pages from the correction officer's shirt, ripping his uniform pocket as he did so.   Petitioner then tore up the papers and flushed them down the toilet stating, “You got nothing.”

Substantial evidence of petitioner's guilt was presented at the disciplinary hearing in the form of the misbehavior report and testimony from the correction officer who authored it (see, Matter of Knickerbocker v. Goord, 276 A.D.2d 1008, 715 N.Y.S.2d 454;  Matter of Feliciano v. Selsky, 263 A.D.2d 810, 694 N.Y.S.2d 798).   Petitioner's testimony, in which he asserted his innocence and alleged that he had been “set up” by correction officers, presented an issue of credibility that was resolved in the discretion of the Hearing Officer (see, Matter of Velez v. Goord, 262 A.D.2d 906, 694 N.Y.S.2d 486).   The remaining contentions raised herein have been reviewed and found to be without merit.

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

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