Opinion
11-12-2015
In the Matter of Judson WATKINS, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Judson Watkins, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Judson Watkins, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Opinion 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with smuggling and violating visiting room procedures. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. The determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.We confirm. The misbehavior report and videotape of the incident provide substantial evidence to support the determination (see Matter of McEachin v. Napoli, 56 A.D.3d 1089, 867 N.Y.S.2d 361 [2008] ; Matter of Brown v. Goord, 9 A.D.3d 646, 647, 779 N.Y.S.2d 651 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 667, 821 N.E.2d 972 [2004] ). Contrary to petitioner's view, the videotape does not contradict the claim in the misbehavior report that petitioner's wife transferred contraband to him through a parting kiss (see Matter of Lionkingzulu v. Fischer, 107 A.D.3d 1194, 1194, 966 N.Y.S.2d 703 [2013] ; Matter of McLaughlin v. Fischer, 69 A.D.3d 1071, 1072, 893 N.Y.S.2d 364 [2010] ). Petitioner's testimony that neither he nor his wife engaged in the conduct was a credibility issue for the Hearing Officer to resolve (see Matter of White v. Prack, 131 A.D.3d 1333, 1334, 16 N.Y.S.3d 786 [2015] ). This remains our holding despite the fact that no contraband was recovered (see Matter of Gren v. Annucci, 119 A.D.3d 1307, 1308, 991 N.Y.S.2d 169 [2014] ). Petitioner's remaining claims have been considered and are either not preserved for our review or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., GARRY, LYNCH and DEVINE, JJ., concur.