| Matter of Parks v Smith |
| 2008 NY Slip Op 02729 [49 AD3d 1123] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Parks, Petitioner, v Joseph T. Smith, asSuperintendent of Shawangunk Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with soliciting goods or services, possessingunauthorized organizational materials and failing to comply with facility correspondenceprocedures. At the conclusion of the tier II disciplinary hearing that followed, petitioner wasfound guilty of possessing unauthorized organizational materials—namely, a photographof himself depicting a gang symbol—and not guilty of the remaining charges, and apenalty was imposed. That determination was affirmed upon administrative appeal, promptingpetitioner to commence this proceeding pursuant to CPLR article 78 seeking to annul theunderlying determination.
We confirm. The misbehavior report, together with the photograph of petitioner and thetestimony of a senior counselor trained in identifying gang-related materials, provides substantialevidence of petitioner's guilt (see Matterof Williams v Goord, 13 AD3d 760, 761 [2004]; Matter of Campoverde v Selsky, 9 AD3d 722, 722-723 [2004]; Matter of Delos Santos v Goord, 4AD3d 709, 710 [2004]; Matter of Knickerbocker v Goord, 276 AD2d 1008 [2000];Matter of Feliciano v Selsky, 263 AD2d 810, 810-811 [1999]). Petitioner's testimony thatthe [*2]hand gesture at issue constituted a form of meditationused in the practice of his religion presented a credibility issue for the Hearing Officer to resolve(see Matter of Smith v Goord, 45AD3d 1119 [2007]). As for the senior counselor's failure to endorse the misbehavior report,this omission is not fatal as the counselor's name and position appear on the face of themisbehavior report, petitioner had the opportunity to question this individual at the hearing andpetitioner has failed to demonstrate any resultant prejudice (see Matter of Winbush v Goord, 6 AD3d 821, 822 [2004]; see also Matter of Blackwell v Goord,12 AD3d 816, 817 [2004]). Finally, our review of the record discloses no evidence ofhearing officer bias or any indication that the underlying determination flowed from such allegedbias (see Matter of Burgess vGoord, 45 AD3d 1144 [2007]; Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007]).
Mercure, J.P., Peters, Spain, Kane and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.