| Matter of Lozada v Cook |
| 2009 NY Slip Op 08549 [67 AD3d 1232] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carlos Lozada, Petitioner, v CatherineCook, as Superintendent of Otisville 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 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 possession of contraband, smugglingand the unauthorized possession of departmental documents and disciplinary documentspertaining to another inmate. Following a tier II disciplinary hearing, petitioner was found guiltyof smuggling and the unauthorized possession of departmental documents and disciplinarydocuments pertaining to another inmate and found not guilty of possession of contraband. Thisdetermination was affirmed on administrative appeal, prompting petitioner to commence thisCPLR article 78 proceeding.
We confirm. The misbehavior report, supporting documentation and the hearing testimonyfrom the correction officer who authored the report provide substantial evidence to support thedetermination of guilt (see Matter of Arrollo v Leclaire, 62 AD3d 1171, 1172 [2009];Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appeal dismissed 12 NY3d872 [2009]). We reject petitioner's contention that he was denied the right to call certaincorrectional employees as witnesses, inasmuch as such testimony would have been irrelevant, asnone of the requested witnesses had personal knowledge of the facts surrounding petitioner'sacquisition of the unauthorized documents (see Matter of Gimenez v Artus, 63 AD3d1461, 1462 [2009]; Matter of [*2]Tirado v Goord, 50AD3d 1332, 1333 [2008]). Finally, there is no indication in the record that the Hearing Officerwas biased or that the determination flowed from any alleged bias (see Matter of Peralta vFischer, 63 AD3d 1399, 1399 [2009]; Matter of Cannon v Fischer, 62 AD3d 1109,1109 [2009]).
Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.