In the Matter of Edwin Zayes, Petitioner, v. Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents

In the Matter of Edwin Zayes, Petitioner, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents. [702 NYS2d 433] [MAJORITY] —Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene 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 hearing, petitioner, a prison inmate, was found guilty of creating a disturbance, violent conduct and possession of a weapon. Upon administrative review, the determination was modified and the charge of possession of a weapon was dismissed and petitioner’s penalty was reduced. Thereafter, petitioner commenced this CPLR article 78 proceeding contending that the determination of guilt was not supported by substantial evidence. This proceeding was subsequently transferred to this Court. The detailed misbehavior report, authored by a correction officer who investigated the incident, together with the testimony of another correction officer who cosigned the misbehavior report, petitioner’s own admissions and the confidential information offered, were sufficiently relevant and probative to support the determination of petitioner’s guilt even though some of the evidence may have been based upon hearsay (see, Matter of Parker v Goord, 247 AD2d 694). Furthermore, the Hearing Officer was free to resolve any conflicting testimony against petitioner (see, Matter of Nieves v Selsky, 263 AD2d 795). Petitioner’s remaining contentions have been examined and found to be without merit. Cardona, P. J., Mercure, Peters, Carpinello and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.