IN RE: Gary EVANS

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

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

Decided: June 28, 2007

Before:  MERCURE, J.P., PETERS, MUGGLIN, ROSE and KANE, JJ. Gary Evans, Gowanda, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.

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 challenges a determination finding him guilty of violating facility visiting procedures, creating a disturbance, harassment and refusing a direct order in violation of prison disciplinary rules.   We confirm.   The misbehavior report with a factually specific account of the incident written by the correction officer involved and endorsed by a witness employee, along with the testimony of the two witnessing correction officers, provides substantial evidence supporting the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990];  Matter of Goncalves v. Donnelly, 9 A.D.3d 721, 779 N.Y.S.2d 842 [2004] ).   Petitioner's exculpatory statements as to the nature of the events and the testimony of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).

Petitioner's procedural objections are unpersuasive.   The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any bias on the part of the Hearing Officer (see Matter of Cayenne v. Goord, 16 A.D.3d 782, 783-784, 790 N.Y.S.2d 762 [2005] ).   Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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

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