| Matter of Smith v Fischer |
| 2009 NY Slip Op 01904 [60 AD3d 1230] |
| March 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Julio Isley Smith, Petitioner, v Brian Fischer, 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 foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in three separate misbehavior reports with violating various prisondisciplinary rules. At the conclusion of the tier III disciplinary hearing that followed, the HearingOfficer found petitioner guilty of all but one of the charges and imposed a penalty. Petitioner'sadministrative appeal proved unsuccessful, prompting him to commence this CPLR article 78proceeding challenging the determination of guilt.
To the extent that petitioner raises a substantial evidence claim, we find that the misbehaviorreports and petitioner's admissions constitute substantial evidence of petitioner's guilt (see Matter of Tinnirello v Selsky, 51AD3d 1238, 1239 [2008]; Matterof Mariani v Selsky, 47 AD3d 1146, 1146-1147 [2008]). Although petitioner contendsthat the misbehavior reports were issued in retaliation for complaints he had filed againstcorrection officials, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Belot v Selsky, 56 AD3d911 [2008]; Matter of Salahuddin vGoord, 49 AD3d 1107 [2008], lv denied 10 NY3d 717 [2008]). [*2]Finally, petitioner's claim that the Hearing Officer admitted that heauthored the disposition prior to the commencement of the hearing is both belied by the recordand meritless. A review of the hearing transcript fails to disclose any evidence of bias or that thedetermination flowed from any alleged bias (see Matter of Harvey v Woods, 56 AD3d 829 [2008]; Matter of Purcell v McKoy, 54 AD3d1113, 1114 [2008]).
Cardona, P.J., Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.