Opinion
2011-04-21
In the Matter of Travis DARSHAN, Petitioner, v. OFFICER BANGO et al., Respondents.
Travis Darshan, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Travis Darshan, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, an inmate, asked a female correction employee for her assistance in using the computer. When she responded to his request, she found him masturbating in a chair with his pants unzipped and his genitals exposed. As a result, petitioner was charged in a misbehavior report with engaging in lewd conduct. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report provides substantial evidence supporting the determination finding petitioner guilty of engaging in lewd conduct ( see Matter of Johnson v. Goord, 42 A.D.3d 626, 627, 838 N.Y.S.2d 275 [2007];Matter of Tafari v. Selsky, 38 A.D.3d 1079, 1079, 831 N.Y.S.2d 603 [2007],lv. denied8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ). While petitioner denied any wrongdoing, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Lynch v. Fischer, 76 A.D.3d 734, 735, 905 N.Y.S.2d 523 [2010];Matter of LaFontant v. Fischer, 51 A.D.3d 1347, 1347, 860 N.Y.S.2d 637 [2008] ). Likewise, we are not persuaded that petitioner's claim of inadequate employee assistance has merit given that the testimony of petitioner's proposed witnesses was either irrelevant ( see Matter of Dennis v. Bezio, 82 A.D.3d 1398, ––––, 918 N.Y.S.2d 666, 667 [2011];Matter of Lozada v. Cook, 67 A.D.3d 1232, 1233, 890 N.Y.S.2d 130 [2009],lv. denied14 N.Y.3d 706, 899 N.Y.S.2d 754, 926 N.E.2d 259 [2010] ) or concerned a factual contention of petitioner that the Hearing Officer accepted at the hearing as true.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.