Matter of Pulliam v Goord

2007 NY Slip Op 09175 [45 AD3d 1158]

November 21, 2007

Appellate Division, Third Department

As corrected through Wednesday, January 16, 2008

In the Matter of Dwayne Pulliam, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent.

—[*1]Dwayne Pulliam, Auburn, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of possession ofcontraband and possession of unauthorized organizational materials. On administrative appeal,the determination was affirmed with a modified penalty. This CPLR article 78 proceeding ensuedand we now confirm.

The determination of guilt is supported by substantial evidence consisting of the misbehaviorreport and testimony adduced at the hearing (see Matter of Fontaine v Superintendent of Southport CorrectionalFacility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943[2007]). Petitioner's claim that the correction officers planted some of the items found in his cell,along with his retaliation defense, created credibility issues for resolution [*2]by the Hearing Officer (see Matter of Hamilton v Selsky, 13 AD3d 844, 845 [2004], lvdenied 5 NY3d 704 [2005]). Contrary to petitioner's assertion, the record demonstrates thatthe hearing was conducted in a fair and impartial manner and that the determination did not flowfrom any alleged bias (see Matter ofDolan v Goord, 41 AD3d 1119, 1119 [2007]). Petitioner's remaining contentions,including his claims that the cell search was not appropriately memorialized, the Hearing Officershould have recused himself and the hearing transcript is deficient, have been examined andfound to be unavailing.

Mercure, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.