| Matter of Arriaga v Smith |
| 2010 NY Slip Op 01043 [70 AD3d 1160] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony Arriaga, Petitioner, v Joseph T.Smith, as Superintendent of Shawangunk Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of respondent Superintendent ofShawangunk Correctional Facility which found petitioner guilty of violating certain prisondisciplinary rules.
Petitioner was charged in a misbehavior report with theft of state property and smugglingafter a search of his personal bag as he left the facility kitchen uncovered over two pounds ofsliced turkey and nine slices of bread. Following a tier II disciplinary hearing, petitioner wasfound guilty of both charges. The determination was affirmed on administrative appeal and thisCPLR article 78 proceeding ensued.
We confirm. To the extent that petitioner challenges the evidentiary basis of thedetermination, we conclude that the misbehavior report, together with the hearing testimony ofits author, provide substantial evidence supporting the determination of guilt (see Matter of Roye v Goord, 34 AD3d1134 [2006]). Further, the misbehavior report was sufficient to apprise petitioner of thecharges against him and he has demonstrated no prejudice in preparing a defense from anyalleged errors in the report regarding the location of the search or the date of service (see Matter of Linares v Fischer, 59AD3d 761 [2009], lv denied 12 NY3d 709 [2009]). [*2]Petitioner's contention that the bag containing the food did notbelong to him presented a credibility issue for the Hearing Officer to resolve (see Matter of Cruz v Fischer, 57 AD3d1055 [2008]). Finally, we find no support in the record for petitioner's claim that theHearing Officer was biased or that the determination flowed from any bias (see Matter of Warren v Fischer, 63AD3d 1466, 1467 [2009]). We have examined petitioner's remaining contentions and, to theextent preserved, find them to be unavailing.
Peters, J.P., Rose, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.