| Matter of Holmes v Brown |
| 2007 NY Slip Op 06776 [43 AD3d 1234] |
| September 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of David Holmes, Petitioner, v William Brown, asSuperintendent of Eastern Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), forrespondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichfound petitioner guilty of violating a prison disciplinary rule.
At the conclusion of a tier II disciplinary hearing, petitioner was found guilty of a movementregulation violation. That determination was affirmed upon administrative appeal, prompting thecommencement of this CPLR article 78 proceeding.
The determination of guilt is supported by substantial evidence in the form of themisbehavior report and petitioner's hearing testimony (see Matter of Fontaine v Superintendent of Southport CorrectionalFacility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943[2007]; Matter of Kalwasinski vGoord, 31 AD3d 1081, 1082 [2006]). With respect to petitioner's claim of hearingofficer bias, it is unpreserved for our review given his failure to raise it on his administrativeappeal and, in any event, is without merit (see Matter of Townes v Goord, [*2]32 AD3d 1136, 1137 [2006]). As for petitioner's assertion regardingirregularities in the hearing transcript, "such deficiencies are not so significant as to precludemeaningful judicial review" (Matter ofDaniels v Goord, 31 AD3d 1076, 1077 [2006]).
Petitioner's remaining contentions, to the extent preserved, have been examined and found tobe unavailing.
Carpinello, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.