| Matter of McKinley v Goord |
| 2008 NY Slip Op 00009 [47 AD3d 974] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Sincere McKinley, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 a prison disciplinary rule.
Petitioner sent a letter to the Deputy Commissioner of Correctional Services insinuating thathe would assault staff if he was not transferred to another correctional facility. As a result, he wascharged in a misbehavior report with making threats. Following a tier III disciplinary hearing,petitioner was found guilty of the charge and the determination was affirmed on administrativereview with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho prepared it as well as the letter that petitioner sent, constitute substantial evidencesupporting the determination of guilt (see Matter of Rizzuto v Goord, 35 AD3d 1078, 1079 [2006]; Matter of Schuler v McCray, 8 AD3d777, 778 [2004]). We reject petitioner's claim that he was improperly denied the right to callthe Deputy Commissioner as a witness inasmuch as his testimony was not relevant to the charge(see Matter of Hynes v Goord, 305 AD2d 829, 830 [2003], lv denied 100 NY2d510 [2003]; Matter of Thomas v Goord, 293 AD2d 787, 788 [2002], lv denied 98NY2d 613 [2002]). Moreover, the record does not establish that the Hearing Officer [*2]was biased or that the determination flowed from any alleged bias(see Matter of Nieves v Goord, 39AD3d 1104, 1105 [2007]). Likewise, there is no merit to petitioner's contention that he wasimproperly excluded from the hearing as the transcript reveals that petitioner voluntarily removedhimself (see Matter of Webb v McGinnis, 271 AD2d 767, 768 [2000]. In view of theforegoing, we find no reason to disturb the determination of guilt.
Cardona, P.J., Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.