| Matter of Hamilton v Bezio |
| 2010 NY Slip Op 06671 [76 AD3d 1125] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Derrick Hamilton, Petitioner, v Norman R. Bezio,as Director 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.
Petitioner, a prison inmate, was leaving the mess hall with a box containing several slices ofpizza when he was directed by a correction officer to return the pizza. After petitioner loudlyrefused, and dinner was delayed while additional pizza was procured for the other inmates, hewas served with a misbehavior report charging him with refusing a direct order, violating messhall serving policies, disturbing facility order and stealing state property. At the tier IIIdisciplinary hearing, petitioner refused to participate to the extent that he would not even identifyhimself on the record. After the hearing, he was found guilty of refusing a direct order andviolating mess hall serving policies. That determination was sustained on administrative appeal,and petitioner commenced this CPLR article 78 proceeding.
We confirm. Petitioner contends that, despite the Hearing Officer's statements on the recordthroughout the hearing that petitioner was present and refusing to participate, he was actuallyremoved from the hearing and his presence thereafter fabricated and, therefore, his due processrights were violated. We find, however, that, in the complete absence of affidavits, [*2]documentation or any other evidence to substantiate petitioner'sallegations that he was not present at the hearing, we must credit the Hearing Officer's version ofevents (see generally CPLR 7804 [d]; Matter of Davis v Goord, 21 AD3d 606, 610 [2005]; Matter ofLewis v DeBuono, 257 AD2d 787, 787-788 [1999]). Therefore, with regard to petitioner'scontentions that the misbehavior report was defective and that it was served upon him inretaliation for his advocacy efforts inside the prison, we find them unpreserved for our review byvirtue of his failure to raise them during the hearing when they could have been addressed (see Matter of Bosquet v Bezio, 69AD3d 1257, 1258 [2010]; Matter ofChristian v Goord, 20 AD3d 862, 863 [2005]). We next find that the detailedmisbehavior report, along with the testimony of the correction officer involved in the incident,provide substantial evidence to support the determination of guilt (see Matter of Sital v Fischer, 73 AD3d1348, 1349 [2010]; Matter ofBartley v Fischer, 73 AD3d 1363, 1363-1364 [2010]). Finally, our review of the recordreveals that the determination of guilt emanated from the evidence presented against petitioner,rather than any alleged hearing officer bias (see Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]; Matter of Hayes v Fischer, 70 AD3d1085, 1086 [2010]).
Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.