| Matter of Zaire v Artus |
| 2008 NY Slip Op 01892 [49 AD3d 945] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of David Zaire, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, 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 Clinton County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinarydetermination finding him guilty of interference with an employee. Our review of the recordreflects that the determination of guilt is supported by substantial evidence consisting of themisbehavior report as well as testimony adduced at the hearing (see Matter of Tafari v Selsky, 45 AD3d1139, 1139 [2007]). Regarding petitioner's contention that the misbehavior report was issuedin retaliation for his filing of grievances, a credibility issue was created for resolution by theHearing Officer (see Matter of Lashley vLindsay, 45 AD3d 1073, 1073-1074 [2007]). Petitioner's allegation that the HearingOfficer was biased is unsubstantiated in the record and, in any event, there is no indication thatthe determination in issue flowed from any purported bias (see Matter of Burgess v Goord, 45 AD3d 1144, 1145 [2007]). Wehave examined petitioner's remaining assertions, including his claim that the hearing wasuntimely, and find them to be unavailing.
Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.