Ventimiglia v. New York State Dep't of Corr. Servs.

• Decision Date: 19 April 2012
• Citation: 94 A.D.3d 1327,2012 N.Y. Slip Op. 02941,942 N.Y.S.2d 699
• Parties: In the Matter of Sebastian VENTIMIGLIA, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02941

94 A.D.3d 1327

942 N.Y.S.2d 699

In the Matter of Sebastian VENTIMIGLIA, Petitioner,

v.NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 19, 2012.

Sebastian Ventimiglia, Collins, petitioner pro se.

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

Before: ROSE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with refusing a direct order after he failed to disclose to a correction officer the name of the individual who changed the information on his package room folder to enable him to receive a larger monthly allotment of food. He was found guilty of this charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt ( see Matter of Green v. Bradt, 79 A.D.3d 1566, 1567, 914 N.Y.S.2d 739 [2010], lv. denied 16 N.Y.3d 709, 2011 WL 1237573 [2011]; Matter of Wahhab v. Fischer, 77 A.D.3d 996, 997, 908 N.Y.S.2d 753 [2010] ). Petitioner's assertion that he did not know the identity of the individual in question presented a credibility issue for the Hearing Officer to resolve ( see Matter of Vaello v. Connolly, 84 A.D.3d 1624, 1625, 923 N.Y.S.2d 313 [2011], appeal dismissed 17 N.Y.3d 854, 930 N.Y.S.2d 548, 954 N.E.2d 1174 [2011]; Matter of Morusma v. Fischer, 74 A.D.3d 1675, 1675, 906 N.Y.S.2d 109 [2010] ). His claim of hearing officer bias is not preserved for our review given his admitted failure to raise it in his administrative appeal ( see Matter of Ifill v. Fischer, 72 A.D.3d 1367, 1368, 901 N.Y.S.2d 723 [2010]; Matter of Quinones v. Fischer, 55 A.D.3d 1200, 1200–1201, 867 N.Y.S.2d 226 [2008] ).

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