Opinion
2013-03-21
In the Matter of Kenith A'GARD, Petitioner, v. Thomas LaVALLEY, as Superintendent of Clinton Correctional Facility, et al., Respondents.
Kenith A'Gard, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Kenith A'Gard, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 Superintendent of Clinton Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner left his cell block for his scheduled call out to the law library, but proceeded instead to the mosque. As a result, petitioner was charged in a misbehavior report with violating facility movement regulations and being out of place. He was found guilty of the charges at the conclusion of a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report and petitioner's own testimony provide substantial evidence supporting the determination of guilt ( see Matter of Barclay v. Zolkosky, 78 A.D.3d 1343, 1344, 912 N.Y.S.2d 447 [2010];Matter of Frejomil v. LaClair, 46 A.D.3d 1061, 1061, 847 N.Y.S.2d 291 [2007] ). While petitioner maintained that he had permission from another officer to go to the mosque instead *666of the law library, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Sterling v. Fischer, 75 A.D.3d 709, 903 N.Y.S.2d 281 [2010];Matter of Harrison v. Bertone, 51 A.D.3d 1350, 860 N.Y.S.2d 641 [2008] ). His remaining contentions have not been preserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.