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In the Matter of Jessie J. Barnes v. Norman Bezio

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


July 28, 2011

IN THE MATTER OF JESSIE J. BARNES, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 8, 2011

Before: Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, 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 a prison disciplinary rule.

After correction officials received confidential information that petitioner was in possession of a weapon, petitioner was pat frisked and a sharpened metal rod with a cloth handle was found in the right front pocket of his pants. As a result, he was charged in a misbehavior report with possessing a weapon and was found guilty of this charge at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of correction officials involved in the frisk and related documentation, including a picture of the weapon, provide substantial evidence supporting the determination of guilt (see Matter of Robertson v Fischer, 70 AD3d 1081, 1081 [2010]; Matter of Cruz v Fischer, 57 AD3d 1055 [2008]). Petitioner's claim that the weapon was planted and the misbehavior report written in retaliation for a complaint filed against another correction officer is belied by the testimony of that officer and presented a credibility issue for the Hearing Officer to resolve (see Matter of Lopez v Fischer, 69 AD3d 1076, 1076 [2010]; Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]). Although petitioner also asserts that he was denied adequate employee assistance, any deficiencies were remedied by the Hearing Officer to petitioner's satisfaction and he has not demonstrated that he was prejudiced (see Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]; Matter of Rivera v Goord, 38 AD3d 964, 964 [2007]). Furthermore, we find no merit to petitioner's claim that the hearing was not conducted in a fair and impartial manner, and there is no indication in the record that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Griffin v Goord, 43 AD3d 591, 591 [2007]; Matter of Al-Matin v Artus, 43 AD3d 497, 498 [2007]). Petitioner's remaining contentions, including his claims that he was denied witnesses and relevant documentary evidence, have been considered and are unavailing.

Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110728

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