| Matter of Randolph v Napoli |
| 2008 NY Slip Op 08370 [56 AD3d 832] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leonard Randolph, Petitioner, v David Napoli, asSuperintendent of Southport Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Chemung County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate housed at Southport Correctional Facility in Chemung County,was charged in a misbehavior report with making threats and violent conduct after allegedlyadvising a deputy superintendent that if any correction officers touched him he would create "thebiggest breach of security Southport has ever seen." Following a tier III hearing, during whichpetitioner was expelled for disruptive behavior, petitioner was found guilty of both charges.Upon administrative review, that determination was affirmed and this CPLR article 78proceeding ensued.
We confirm. The determination of guilt is supported by substantial evidence, which includesthe misbehavior report and hearing testimony (see Matter of Spulka v Selsky, 36 AD3d 1183, 1184 [2007]; Matter of Johnson v Goord, 27 AD3d859, 860 [2006]). Regarding petitioner's claim that his words were misunderstood and notintended as a threat, this created a [*2]credibility issue to beresolved by the Hearing Officer (seeMatter of Ramos v Selsky, 48 AD3d 863, 864 [2008]). We also disagree withpetitioner's assertion that he was improperly removed from the tier III hearing, as the recordreveals antagonistic behavior by petitioner, including continuously raising objections andaccusing the Hearing Officer of being biased against him, as well as his refusal to limit histestimony to the charges at hand (seeMatter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]). Contrary to petitioner'sprotestations, there is no indication in the record that the Hearing Officer was biased or that hisdetermination flowed from any purported bias (see Matter of Kirby v Leclaire, 47 AD3d 1174, 1175 [2008]).Petitioner's remaining contentions, including his claims that he was denied adequate employeeassistance and that the misbehavior report did not provide notice of the charges against him andwas retaliatory in nature, to the extent preserved for our review, are without merit.
Mercure, J.P., Spain, Rose and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.