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Rivera v. Pilon

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 5, 2009

IN THE MATTER OF GILBERTO RIVERA, PETITIONER,
v.
D. PILON, AS CORRECTION OFFICER, ET AL., RESPONDENTS.

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: December 18, 2008

Before: Peters, J.P., Lahtinen, Kane and Malone Jr., JJ.

MEMORANDUM AND JUDGMENT

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.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of harassment and making threats. We now confirm.

To the extent that petitioner challenges the determination of guilt on an evidentiary basis, the misbehavior report, authored by the correction officer involved in the incident, is sufficient, by itself, to provide substantial evidence to support the determination (see Matter of Adams v Goord, 45 AD3d 940, 940-941 [2007]). As for petitioner's contention that the Hearing Officer was biased, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]). Petitioner's remaining assertions, including his claim that he was denied his right to present witness testimony, have been considered and are either unpreserved or lacking in merit.

Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur.

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

20090205

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