Opinion
May 11, 2000.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Dean Scott, Ogdensburg, petitioner in person.
Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.
Before: Cardona, P.J., Mercure, Crew III, Spain and Carpinello, JJ.
MEMORANDUM AND JUDGMENT
Petitioner, a prison inmate, was found guilty of smuggling and theft after it was determined that he stole food from the messhall. It was alleged that petitioner, who worked cleaning the messhall garbage cans, concealed food in them under their liners. At the tier III hearing, a Deputy Superintendent testified that while conducting a disciplinary hearing in another matter, he learned that petitioner was involved in the smuggling of food from the messhall. A correction officer also testified at the hearing that petitioner was the only prisoner responsible for cleaning garbage cans and was observed performing this activity on the evening in question when 70 pounds of rice was found in a can. This direct testimony of the correction officer, coupled with the detailed hearsay testimony of the Deputy Superintendent (which we find was sufficiently relevant and probative [see, Matter of Nina v. Coughlin, 191 A.D.2d 942, lv denied 82 N.Y.2d 651]), constitutes substantial evidence to support the determination. Even though the other inmates who were also charged with smuggling food did not completely corroborate the Deputy Superintendent's testimony, this presented a credibility determination for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964).
Further, we reject petitioner's claim that his right to practice religion was violated. As a result of being found guilty, petitioner was placed on 30 days' loss of special events, a punishment which he argues impermissibly deprived him of his ability to attend Muslim services. This issue, however, is unpreserved for our review since petitioner failed to raise it in his administrative appeal (see, Matter of Abrams v. Coughlin, 150 A.D.2d 931).
Cardona, P.J., Mercure, Crew III and Spain, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.