Decided and Entered: January 8, 2004 94012 In the Matter of GARFIELD ALLEN, Petitioner, v MEMORANDUM AND JUDGMENT GLENN S. GOORD, as Commissioner of Correctional Services, Respondent. ________________________________ Calendar Date: November 26, 2003 Before: Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ. __________ Garfield Allen, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting smuggling and failure to comply with visiting regulations. The misbehavior report was authored by a correction officer who was surveilling the facility’s non-contact visiting area when he observed petitioner and his visitor crouched down on either side of the door separating the two sides of the non-contact visiting room. The visit was immediately terminated after which a second correction officer searched petitioner’s side of the visiting room where he found a beverage can that contained straw broom bristles tied to lengths of dental floss and a plastic bag. The officer characterized these items as paraphernalia known to be used to transfer contraband under locked doors. The misbehavior report prepared by the correction officer who witnessed the events in question, as well as the other evidence relied on by the Hearing Officer, were sufficient to constitute substantial evidence of petitioner’s guilt (see Matter of Alejandro v Goord, 278 AD2d 731 [2000]). The hearing testimony of petitioner and the telephonic testimony given by his visitor, both of whom attested to petitioner’s innocence, presented issues of credibility for resolution by the Hearing Officer (see Matter of Price v Goord, 301 AD2d 986, 987 [2003]). Petitioner’s additional contentions, including his arguments that his right to a fair hearing was denied by procedural violations, including hearing officer bias, have been examined and found to be without merit (see Matter of Jackson v Portuondo, 287 AD2d 847, 848 [2001]). Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court
