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Arrington v. Burge

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 4, 2008

IN THE MATTER OF JERMAL ARRINGTON, PETITIONER,
v.
JOHN W. BURGE, AS SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Peters, J.P., Carpinello, Rose, Kane and Stein, JJ.

MEMORANDUM AND JUDGMENT

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

At the conclusion of a tier II disciplinary hearing, petitioner, a prison inmate, was found guilty of possession of altered items, possession of stolen property and unauthorized exchange. Petitioner exhausted his administrative remedies and commenced this CPLR article 78 proceeding seeking annulment.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report and statements made by petitioner during the hearing (see Matter of Freeman v Leclaire, 50 AD3d 1329, 1329 [2008]). To the extent that contradictory testimony was given by other inmates, credibility issues were created for resolution by the Hearing Officer (see Matter of Harvey v Woods, 53 AD3d 988, 988 [2008]). As for petitioner's claim of hearing officer bias, it is neither substantiated by the record nor is there any indication that the determination flowed from any alleged bias (see Matter of Vigliotti v Bell, 52 AD3d 1064, 1064 [2008]). Petitioner's remaining contentions have been examined and found to be unavailing.

Peters, J.P., Carpinello, Rose, Kane and Stein, JJ., concur.

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

20081204

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