
    In the Matter of Herbert Burgess, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    [816 NYS2d 766]
   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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner’s cell, a number of items were recovered including, among other things, papers detailing the sale of food items, legal papers belonging to another inmate, five lottery tickets and certain gang-related materials. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange, possessing contraband, smuggling, misusing state property and possessing lottery tickets. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

The misbehavior report, together with the testimony of the correction officer who authored it and the confiscated materials, provide substantial evidence supporting the determination of guilt (see Matter of O’Connor v Selsky, 24 AD3d 841, 842 [2005]; Matter of Torres v Goord, 306 AD2d 592, 593 [2003], lv denied 100 NY2d 515 [2003]). Petitioner’s exculpatory testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Wright v Goord, 19 AD3d 855, 855 [2005], lv denied 5 NY3d 711 [2005]). Petitioner’s procedural claims have not been preserved for our review due to his failure to raise them at the disciplinary hearing.

Cardona, PJ., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.  