| Matter of Dubois v Bezio |
| 2009 NY Slip Op 07915 [67 AD3d 1111] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Donald Dubois, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 certain prison disciplinary rules.
During a search of petitioner's cell, correction officials recovered 40 individual packets of abrownish substance that tested positive for heroin secreted in bags of rice located underpetitioner's bed. As a result, petitioner was charged in a misbehavior report with possessing anarcotic drug as well as contraband. Following a tier III disciplinary hearing, petitioner wasfound guilty of the charges. The determination was later affirmed on administrative appeal with amodified penalty and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony of the correction officer who authored it anddocumentary evidence provide substantial evidence supporting the determination of guilt (see Matter of Dozier v Selsky, 54AD3d 1074, 1075 [2008]; Matterof Diaz v Goord, 26 AD3d 561, 562 [2006]). There is no merit to petitioner's claim thatthe assigned Hearing Officer should not have presided over the hearing. Although the HearingOfficer knew about the search, there is no evidence establishing either that he witnessed theincident or that he investigated the same (see Matter of Sime v Goord, 30 AD3d 887, 888 [2006], lvdenied 7 NY3d 717 [2006]). Petitioner's remaining contentions have either not beenpreserved for our review or are lacking in merit.[*2]
Cardona, P.J., Rose, Lahtinen, McCarthy and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.