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Valerio v. New York State Department of Correctional Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF VICTOR VALERIO, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Cardona, P.J., Mercure, Kane, Malone Jr. and Kavanagh, 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.

Petitioner was charged in a misbehavior report with possession of contraband and facility documents after a search of his cell revealed a copy of a prohibited directive. He was found guilty of both charges after a tier III disciplinary hearing and an unsuccessful administrative appeal followed. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and the hearing testimony, including petitioner's admission that he possessed the document, constitute substantial evidence to support the determination (see Matter of Messiah v New York State Dept. of Correctional Servs., 52 AD3d 1133, 1133 [2008]; Matter of Garcia v Selsky, 48 AD3d 931, 932 [2008], appeal dismissed 10 NY3d 909 [2008]). We find no error in the Hearing Officer's denial of petitioner's request to recall a particular witness inasmuch as the testimony that petitioner sought to elicit would have been redundant or irrelevant to the charges (see Matter of Sheppard v Bezio, 62 AD3d 1189, 1190 [2009]; Matter of Morris v Goord, 50 AD3d 1327, 1327 [2008]). Finally, we find no support in the record for petitioner's claim that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of Gimenez v Artus, 63 AD3d 1461, 1462 [2009]; Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]).

We have examined petitioner's remaining contentions and find them to be without merit.

Cardona, P.J., Mercure, Kane, Malone Jr. and Kavanagh, JJ., concur.

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

20091119

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