Opinion
July 12, 1989
Appeal from the Supreme Court, Wyoming County, Bayger, J.
Present — Dillon, P.J., Callahan, Green, Balio and Lawton, JJ.
Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: Because the essential issue raised in this CPLR article 78 proceeding is whether the determination of the Hearing Officer is supported by substantial evidence, Special Term should not have decided the matter and instead, should have transferred it to this court (see, CPLR 7804 [g]). However, we may consider the matter as if it had been properly transferred (Matter of McKins v Coughlin, 142 A.D.2d 987).
Whether Correction Officer Mussar authorized petitioner to delete names from the facility law library call-out list was a credibility issue for the Hearing Officer to resolve (Matter of Perez v Wilmot, 67 N.Y.2d 615; Matter of McKins v Coughlin, supra; Matter of Summer v Kelly, 139 A.D.2d 972, lv denied 72 N.Y.2d 804). The Hearing Officer credited Mussar's version, and the Hearing Officer's determination of guilt is supported by substantial evidence.