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Cruz v. Goord

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 2007
41 A.D.3d 1122 (N.Y. App. Div. 2007)

Opinion

No. 501541.

June 28, 2007.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Harry Cruz, Alden, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

Before: Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ.


As the result of an investigation, correction officers discovered that petitioner exchanged marihuana with his wife during a visit, asked her to repackage it and to bring it back to the correctional facility during a subsequent visit. Petitioner was thereafter charged in a misbehavior report with smuggling and two counts of possessing or conspiring to possess drugs. Following a tier III disciplinary hearing, he was found guilty of smuggling and one count of conspiring to possess drugs. The determination was affirmed on administrative appeal with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of its author and the considerable documentary evidence, provide substantial evidence supporting the determination of guilt ( see Matter of Lovett v Goord, 26 AD3d 563, 564). Petitioner's testimony that he was "set up" by his wife, sister and brother-in-law for failing to cooperate in their plan to smuggle drugs presented a credibility issue for the Hearing Officer to resolve ( see Matter of Vann v Goord, 308 AD2d 611, 612). Petitioner's procedural claims have either not been preserved for our review or are lacking in merit.

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


Summaries of

Cruz v. Goord

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 2007
41 A.D.3d 1122 (N.Y. App. Div. 2007)
Case details for

Cruz v. Goord

Case Details

Full title:In the Matter of HARRY CRUZ, Petitioner, v. GLENN S. GOORD, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 28, 2007

Citations

41 A.D.3d 1122 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 5612
840 N.Y.S.2d 171

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