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In the Matter of Jennifer Wolf v. William Powers

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


May 19, 2011

IN THE MATTER OF JENNIFER WOLF, PETITIONER,
v.
WILLIAM POWERS, AS SUPERINTENDENT OF ALBION CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Mercure, J.P., Lahtinen, Malone Jr., Garry and Egan Jr., 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was found to be in possession of food products that had been sent by her mother to another inmate. As a result, she was charged in a misbehavior report with engaging in the unauthorized exchange of property, violating facility package procedures and possessing stolen property. Following a tier III disciplinary hearing, petitioner was found guilty of the former two charges but not guilty of the latter.

The determination was subsequently affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, we note that petitioner's challenge to the applicability of the rule charging her with engaging in an unauthorized exchange has been raised for the first time on review to this Court and is, therefore, not preserved for our review (see Matter of Harrison v Selsky, 2 AD3d 1232, 1232 [2003]). The misbehavior report, together with the testimony adduced at the hearing, including petitioner's admission to possessing the subject items and having her mother send them to another inmate, along with the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination finding petitioner guilty of both charges (see Matter of Devaughn v Bezio, 75 AD3d 673, 673-674 [2010]; Matter of Calhoun v Goord, 20 AD3d 628, 628-629 [2005]). To the extent that petitioner asserts that the Hearing Officer was biased, the record discloses no indication of bias or that the determination at issue flowed from any alleged bias (see Matter of Lewis v Fischer, 67 AD3d 1241, 1242 [2009]; Matter of Koehl v LaClair, 67 AD3d 1134, 1134 [2009]). In view of the foregoing, the determination must be confirmed.

Mercure, J.P., Lahtinen, Malone Jr., Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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