| Matter of Green v Bradt |
| 2010 NY Slip Op 00617 [69 AD3d 1269] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Shawn Green, Petitioner, v Mark L. Bradt, asSuperintendent of Elmira Correctional Facility, 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 Chemung County) to review four determinations of respondent findingpetitioner guilty of violating certain prison disciplinary rules and two determinations of theCentral Office Review Committee denying petitioner's grievances.
Petitioner commenced this CPLR article 78 proceeding challenging various determinationsrendered by officials at the correctional facility where he was incarcerated. Among thedeterminations at issue were two determinations of the Central Office Review Committee(hereinafter CORC) denying two grievances that he had filed. In the first grievance, petitionercomplained that, on the days that he had to report to the infirmary to receive his diabetic insulininjections, he was denied access to recreation, showers and phones. Upon investigating thiscomplaint, CORC determined that petitioner was given adequate access to recreation, showers aswell as phones, and it denied his grievance. In the second grievance, petitioner complained thathe was improperly removed from his job assignment in the recycling program. This grievancewas also denied by CORC, but on the basis of safety and security concerns. The remainingdeterminations were rendered after four separate tier II disciplinary hearings wherein petitionerwas found guilty of violating certain prison disciplinary rules.
Turning first to CORC's denial of petitioner's grievances, we note that it was incumbent[*2]upon petitioner to demonstrate that CORC's determinationswere arbitrary and capricious or without a rational basis (see Matter of Patel v Fischer, 67 AD3d 1193, 1193 [2009];Matter of Cliff v Brady, 290 AD2d 895, 896 [2002], lv dismissed and denied 98NY2d 642 [2002]). With regard to his first grievance, the record discloses that, notwithstandingthe necessity of receiving periodic insulin injections at the infirmary, petitioner was still affordedaccess to recreation, showers and phones in accordance with applicable regulations (see7 NYCRR 1704.6). Consequently, CORC's determination denying petitioner's first grievancewas not irrational. As for the second grievance, we note that prison officials are accordedconsiderable deference in matters relating to institutional security (see Matter of Sultan v Goord, 8 AD3d842, 843 [2004]) and find nothing irrational about the removal of petitioner from his job inthe recycling program for this reason. Petitioner has no statutory or constitutional right to anyparticular prison job (see Matter ofHenriquez v Department of Corrections, 53 AD3d 993, 993 [2008]), and his claim thatthe removal was discriminatory is not substantiated by the record.
Lastly, with respect to the prison disciplinary determinations at issue, we note that petitioneris precluded by his plea of guilty from challenging the finding of guilt of the charge of fightingas set forth in the third determination (see Matter of Fews v Goord, 54 AD3d 1073, 1074 [2008]). As forthe determinations of guilt to the remaining charges, we find that the misbehavior reports and thehearing testimony provide substantial evidence supporting such determinations (see Matter of Fuentes v Fischer, 56AD3d 919, 920 [2008]; Matter ofRandolph v Napoli, 56 AD3d 832, 833 [2008]). Furthermore, there is no merit topetitioner's claim of hearing officer bias nor any basis upon which to conclude that thedeterminations at issue flowed from any alleged bias (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]).
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.