| Matter of Gimenez v Artus |
| 2009 NY Slip Op 05223 [63 AD3d 1461] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Edwin Gimenez, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, 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 Clinton County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner interrupted a discussion between two correction officers and then refuseddirectives by one of the officers to be quiet and sit down. As a result, he was charged in amisbehavior report with verbal harassment, making threats and refusing a direct order. Followinga tier II disciplinary hearing, petitioner was found guilty of refusing a direct order and thedetermination was later affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, together with the testimony of the correction officerspresent during the incident, provide substantial evidence supporting the determination of guilt(see Matter of Perez v Dubray, 55AD3d 1119 [2008]; Matter of Fewsv Goord, 54 AD3d 1073, 1074 [2008]) and any contradictions between the testimony ofOfficer D. Barrierre and Officer Bunker created a credibility issue for the Hearing Officer toresolve (see Matter of Pena vSelsky, 53 AD3d 938, 939 [2008]). We reject petitioner's assertion that he wasimproperly denied the right to call certain correctional employees as witnesses inasmuch as suchindividuals' [*2]testimony would have been irrelevant since theywere not present at the time of the incident and had no personal knowledge of the facts (see Matter of Hannah v Burge, 43AD3d 1234 [2007]; Matter of Leev Goord, 36 AD3d 1176, 1177 [2007]). We also find no support in the record forpetitioner's claim that the Hearing Officer was biased or that the determination flowed from anyalleged bias (see Matter of Purcell vMcKoy, 54 AD3d 1113, 1114 [2008]; Matter of Webb v Leclaire, 52 AD3d 1131, 1133 [2008]). We havereviewed petitioner's remaining contentions and find them to be without merit.
Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.