Matter of Lewis v Goord

2007 NY Slip Op 07044 [43 AD3d 1259]

September 27, 2007

Appellate Division, Third Department

As corrected through Wednesday, November 7, 2007

In the Matter of Marc Lewis, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent.

—[*1]Marc Lewis, Wilton, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.

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 guiltyof violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with making threats, creating a disturbance,refusing direct orders and interfering with employees. Following a tier III disciplinary hearing, hewas found guilty of all charges. That determination was affirmed upon administrative appeal andthis CPLR article 78 proceeding ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form ofthe misbehavior report and testimony adduced at the hearing (see Matter of Lopez v Healy, 39 AD3d 978, 978 [2007]).Petitioner's claim that the misbehavior report was issued as a means of retaliation created acredibility issue for resolution by the Hearing Officer (see Matter of Abreu v Goord, 38 AD3d 994, 994 [2007]).Petitioner's assertion that the Hearing Officer was biased is neither substantiated by the recordnor is there any indication that the determination flowed from any alleged bias (see Matter of McKinley v Goord, 40AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]). Petitioner'sremaining contentions have been examined and found to be unpersuasive.[*2]

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.