Matter of Watkins v. Prack

                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   519883
________________________________

In the Matter of JUDSON
   WATKINS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   September 22, 2015

Before:   Peters, P.J., Garry, Lynch and Devine, JJ.

                             __________


     Judson Watkins, Elmira, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      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
                              -2-                  519883

determination (see Matter of McEachin v Napoli, 56 AD3d 1089
[2008]; Matter of Brown v Goord, 9 AD3d 646, 647 [2004], lv
denied 3 NY3d 612 [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 AD3d
1194, 1194 [2013]; Matter of McLaughlin v Fischer, 69 AD3d 1071,
1072 [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 AD3d
1333, 1334 [2015]). This remains our holding despite the fact
that no contraband was recovered (see Matter of Gren v Annucci,
119 AD3d 1307, 1308 [2014]). Petitioner's remaining claims have
been considered and are either not preserved for our review or
without merit.

     Peters, P.J., Garry, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court