NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT
March 12, 2009
IN THE MATTER OF JACK SWEET, PETITIONER,
R. WOODS, AS SUPERINTENDENT OF UPSTATE CORRECTIONAL FACILITY, 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: January 26, 2009
Before: Peters, J.P., Rose, Lahtinen, Kavanagh and McCarthy, 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
After an incident arising out of petitioner's insistence that there was a problem with his food, he was charged in a misbehavior report with refusing a direct order, making threats and creating a disturbance. At the conclusion of the ensuing tier III disciplinary hearing, petitioner was found guilty of all charges. That determination was affirmed upon administrative appeal, prompting this CPLR article 78 proceeding.
We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report and videotape depicting the incident in question (see Matter of McEachin v Napoli, 56 AD3d 1089, 1089 ). Petitioner's assertion that the Hearing Officer was biased is neither substantiated by the record nor is there any indication that the determination in issue flowed from any purported bias (see Matter of Randolph v Napoli, 56 AD3d 832, 833 ). We have examined petitioner's remaining contentions, including his claims that he was denied adequate employee assistance and was deprived of the right to present witness testimony, and find them to be unavailing.
Peters, J.P., Rose, Lahtinen, Kavanagh and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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