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In the Matter of Kenneth v. Joseph T. Smith

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


June 23, 2011

IN THE MATTER OF KENNETH GOODMAN, PETITIONER,
v.
JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 11, 2011

Before: Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, 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 which found petitioner guilty of violating certain prison disciplinary rules.

After a correction officer observed petitioner and another inmate squared off in a fighting stance, petitioner was charged in a misbehavior report with threatening violence and disorderly conduct. Following a tier II disciplinary hearing, he was found guilty of both charges and that determination was administratively affirmed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and hearing testimony of both petitioner and the correction officer who witnessed the incident and authored the report provide substantial evidence to support the finding of guilt with regard to the charged conduct (see Matter of Gentle v Bezio, 78 AD3d 1398, 1399 [2010]). Finally, we disagree with petitioner that the Hearing Officer exhibited bias, and instead find that the determination flowed from the evidence presented at the hearing (see Matter of Ellison v Fischer, 79 AD3d 1538, 1539 [2010]; Matter of Barclay v Knowles, 79 AD3d 1550, 1551 [2010]).

The remainder of petitioner's contentions have been reviewed and found to be either unpreserved or without merit.

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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