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., Spain, Lahtinen, Kavanagh and Stein, 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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
A confidential investigation revealed that, as part of gang activity, petitioner and another inmate ordered a third inmate to attack that inmate's cellmate. As a result, petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting unauthorized organizational activity, assault and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Petitioner exhausted his administrative remedies and then commenced this CPLR article 78 proceeding seeking annulment.
We confirm. To the extent that petitioner contends that there is insufficient evidence to support the determination of guilt, we find that the determination is supported by substantial evidence including the testimony adduced at the hearing, as well as extensive confidential information and testimony considered by the Hearing Officer in camera (see Matter of Vassell v Fischer, 48 AD3d 876, 876 ). Also without merit is petitioner's claim of hearing officer bias. "The fact that the Hearing Officer presided over another hearing involving the same incident does not establish bias where, as here, the record demonstrates that the Hearing Officer relied only on the proof presented at petitioner's hearing" (Matter of Serrano v Goord, 266 AD2d 661, 662 , lv denied 94 NY2d 762  [citation omitted]). Moreover, there is no indication in the record that the determination at issue flowed from any purported bias (see id.).
We have examined petitioner's remaining contentions and, to the extent preserved, find them to be unavailing.
Peters, J.P., Spain, Lahtinen, Kavanagh and Stein, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
© 1992-2008 VersusLaw ...