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In re Reginald Swinton

Appellate Division of the Supreme Court of New York, Third Department
Mar 17, 2011
82 A.D.3d 1440 (N.Y. App. Div. 2011)

Opinion

No. 510497.

March 17, 2011.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Reginald Swinton, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ.


While female food service workers were making rounds to serve breakfast to inmates in the cellblock, petitioner stood in front of his cell with his gym shorts pulled above his waist and his genitals exposed. As a result, he was charged in a misbehavior report with engaging in lewd conduct and interfering with an employee. Following a tier III disciplinary hearing, he was found guilty of the charges. On administrative appeal, the charge of interfering with an employee was dismissed, but the remaining charge was upheld. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of one of the food service workers who witnessed petitioner's conduct, provide substantial evidence supporting the determination finding petitioner guilty of engaging in lewd conduct ( see Matter of Domond v Fischer, 55 AD3d 1199, 1199; Matter of Rojas v Selsky, 55 AD3d 1189). Petitioner's testimony that he was appropriately dressed and did not intentionally expose his genitals created a credibility issue for the Hearing Officer to resolve ( see Matter of Rivera v McGinnis, 290 AD2d 800, 800-801, lv denied 98 NY2d 601; Matter of McMillian v Selsky, 268 AD2d 936). Therefore, we find no reason to disturb the determination at issue.

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


Summaries of

In re Reginald Swinton

Appellate Division of the Supreme Court of New York, Third Department
Mar 17, 2011
82 A.D.3d 1440 (N.Y. App. Div. 2011)
Case details for

In re Reginald Swinton

Case Details

Full title:In the Matter of REGINALD SWINTON, Petitioner, v. BRIAN FISCHER, as…

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

Date published: Mar 17, 2011

Citations

82 A.D.3d 1440 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 1918
918 N.Y.S.2d 745

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