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Jelsik v. Selsky

268 A.D.2d 640 Court N.Y. App. Div. Decision date 2000-01-06 English

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p. 640
In the Matter of Andrew Jelsik, Petitioner, v Donald Selsky, as Director of Special Housing Unit, Department of Correctional Services, Respondent.
[701 NYS2d 673]

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

Following the investigation of a tip that petitioner went into protective custody because he failed to pay another inmate money owed for drugs, petitioner was charged with violating the prison disciplinary rule prohibiting the sale or purchase of any drug within a prison facility. Petitioner contends, inter alla, that the misbehavior report was inadequate because it was not written by an officer who witnessed the conduct and did not provide the date, time or location of the alleged incident. We disagree. The misbehavior report clearly set forth the date, time and location of the alleged incident, as well as the factual basis for the change, so as to properly afford

p. 641
petitioner the ability to prepare his defense (see, Matter of Couch v Goord, 255 AD2d 720 ). Additionally, the misbehavior report, together with the testimony of the confidential informant establishing that petitioner entered into protective custody due to his failure to pay for drugs he had purchased, provided substantial evidence sufficient to support the determination of guilt (see, Matter of Otero v Coughlin, 225 AD2d 841 ; see also, Matter of Harrison v Selsky, 222 AD2d 914 , appeal dismissed 87 NY2d 1054 ). Any alleged inconsistencies between petitioner’s testimony and that of the confidential informant presented issues of credibility for resolution by the Hearing Officer (see, Matter of Baum v Selsky, 235 AD2d 750 ). Petitioner’s remaining contentions have been considered and found to be without merit.

Cardona, P. J., Mercure, Peters, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, ancl petition dismissed.

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