| Matter of Peralta v Fischer |
| 2009 NY Slip Op 05048 [63 AD3d 1399] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Domingo Peralta, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 a misbehavior report with the destruction of, and tampering with,state property. A tier III disciplinary hearing ensued, at the conclusion of which the HearingOfficer found petitioner guilty of tampering and imposed a penalty. Following an unsuccessfuladministrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 tochallenge the determination of guilt.
The misbehavior report, along with the testimony from the correction officer who authoredthe report and petitioner's admission that he was adjusting a metal piece on a fence, constitutesubstantial evidence to support the determination of guilt (see Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appealdismissed — NY3d —, 2009 NY Slip Op 74519 [2009]; Matter of Hodge v Selsky, 53 AD3d953, 954 [2008]). Furthermore, nothing in the record indicates that the Hearing Officer wasbiased or that his determination was the result of any purported bias (see Matter of Randolph v Napoli, 56AD3d 832, 833 [2008]; Matter ofJenkins v Selsky, 51 AD3d 1239, 1240 [2008]).[*2]
Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.