| Matter of Bornstorff v Bezio |
| 2010 NY Slip Op 04479 [73 AD3d 1397] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kouwani Bornstorff, Petitioner, v Norman Bezio,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
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Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Chemung County) to review a determination of the Commissionerof Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary ruleprohibiting the use of a controlled substance after his urine twice tested positive for marihuana.Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed.Although the penalty subsequently was modified, petitioner's administrative appeal otherwiseproved unsuccessful. Petitioner thereafter commenced this proceeding pursuant to CPLR article78 to challenge the determination of guilt.
Preliminarily, although petitioner reached his maximum expiration date and has beendischarged from custody, this proceeding is not moot because petitioner "is entitled to have aninstitutional record free from improperly obtained findings of disciplinary rule violations"(Matter of Pena v Goord, 263 AD2d 690, 690-691 [1999] [internal quotation marks andcitation [*2]omitted]). Turning to the merits, the misbehaviorreport, positive test results and hearing testimony provide substantial evidence of petitioner'sguilt (see Matter of Thompson vGoord, 37 AD3d 914 [2007]; Matter of Toney v Goord, 19 AD3d 843, 844 [2005]). Further, therecord as a whole demonstrates that the correction officer who performed the test was properlytrained and certified and that appropriate testing procedures were followed (see Matter of Polite v Goord, 22 AD3d1000, 1001 [2005]; Matter ofJohnson v Selsky, 14 AD3d 755, 756 [2005]). Finally, contrary to petitioner's assertion,recalibration of the testing apparatus prior to testing petitioner's urine a second time was notrequired (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
As for petitioner's procedural arguments, the record does not support petitioner's claim thatthe Hearing Officer was biased, nor is there any indication that the underlying determinationflowed from any alleged bias (seeMatter of Williams v Fischer, 69 AD3d 1278, 1279 [2010]; Matter of Hernandez v Fischer, 67AD3d 1225, 1226 [2009]). Petitioner's assertion that he was denied certain documentaryevidence is equally unavailing, as the Hearing Officer cannot be faulted for failing to providedocuments that either did not exist or were irrelevant to petitioner's guilt or innocence (see Matter of Lebron v McGinnis, 26AD3d 658, 659 [2006], lv denied 7 NY3d 704 [2006]; Matter of Spirles vGoord, 308 AD2d 610, 611 [2003]). Petitioner's remaining contentions, including hisassertion that the penalty imposed was excessive, have been examined and found to be lacking inmerit.
Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.