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Gimenez v. Artus

State of New York Supreme Court, Appellate Division Third Judicial Department


June 25, 2009

IN THE MATTER OF EDWIN GIMENEZ, PETITIONER,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner interrupted a discussion between two correction officers and then refused directives by one of the officers to be quiet and sit down. As a result, he was charged in a misbehavior report with verbal harassment, making threats and refusing a direct order. Following a tier II disciplinary hearing, petitioner was found guilty of refusing a direct order and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers present during the incident, provide substantial evidence supporting the determination of guilt (see Matter of Perez v Dubray, 55 AD3d 1119 [2008]; Matter of Fews v Goord, 54 AD3d 1073, 1074 [2008]) and any contradictions between the testimony of Officer D. Barrierre and Officer Bunker created a credibility issue for the Hearing Officer to resolve (see Matter of Pena v Selsky, 53 AD3d 938, 939 [2008]). We reject petitioner's assertion that he was improperly denied the right to call certain correctional employees as witnesses inasmuch as such individuals' testimony would have been irrelevant since they were not present at the time of the incident and had no personal knowledge of the facts (see Matter of Hannah v Burge, 43 AD3d 1234 [2007]; Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). We also find no support in the record for petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Webb v Leclaire, 52 AD3d 1131, 1133 [2008]). We have reviewed petitioner's remaining contentions and find them to be without merit.

Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ., concur.

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

20090625

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