State of New York Supreme Court, Appellate Division Third Judicial Department
November 10, 2010
IN THE MATTER OF EDWIN GARCIA, PETITIONER, V JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: September 29, 2010
Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.
After petitioner, a prison inmate, surrendered a package of crackers containing poppy seeds, he was served with a misbehavior report charging him with possession of contraband. Petitioner was found guilty following a tier II disciplinary hearing, and that determination was upheld on administrative appeal with a reduction in the penalty assessed. He thereafter commenced this CPLR article 78 proceeding.
We confirm. Petitioner's only contention is that the Hearing Officer was biased and predisposed to a finding of guilt.*fn1 However, inasmuch as petitioner admitted at the hearing that he possessed the crackers with poppy seeds in clear violation of 7 NYCRR 270.2 (B) (14) (xix), the record shows that the finding of guilt flowed from the evidence presented, rather than any alleged hearing officer bias (see Matter of Covington v Smith, 75 AD3d 708, 708 ; Matter of Hayes v Fischer, 70 AD3d 1085, 1086 ).
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.