IN RE: Alberto VARELA

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

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

Decided: June 24, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CREW III and YESAWICH JR., JJ. Alberto Varela, Comstock, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington 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 disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules which prohibit inmates from engaging in violent conduct, assaulting staff and refusing a search or frisk.   According to the misbehavior report, petitioner was ordered to the wall for a pat frisk after a correction officer observed that he appeared to have something concealed down the back of his pants.   During the frisk, the correction officer stated that petitioner moved his hand and elbow away from the wall in a quick and “aggressive” movement and petitioner had to be physically restrained until help arrived.   A legal folder with papers was found stuffed down petitioner's pants.   Petitioner's administrative appeal of the determination of guilt was unsuccessful and this CPLR article 78 proceeding ensued.

 We confirm.   In our view, the misbehavior report, combined with petitioner's own testimony and the testimony of the correction officers involved in the incident, provide substantial evidence to support the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   While petitioner claimed that he was only frisked as a form of harassment and that he was assaulted by correction officers without provocation, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811, 669 N.Y.S.2d 403).   Petitioner's remaining arguments, including his claim that the Hearing Officer was biased, have been examined and found to be unpersuasive.

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

MEMORANDUM DECISION.

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