| Matter of McDaniels v Bezio |
| 2010 NY Slip Op 06674 [76 AD3d 1129] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Wayne McDaniels, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs, etal., Respondents. |
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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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
After an inmate who was attacked identified petitioner as the aggressor, petitioner wascharged in a misbehavior report with violating the prison disciplinary rules prohibiting assaultupon other inmates and violent conduct. He was found guilty as charged following a tier IIIdisciplinary hearing. The determination was affirmed upon administrative appeal, and this CPLRarticle 78 proceeding ensued.
We confirm. The misbehavior report, when coupled with the documentary evidence andtestimony adduced at the hearing—including that of the victim identifying petitioner as hisattacker—provide substantial evidence of petitioner's guilt (see Matter of Benvenutti v Fischer, 67AD3d 1105, 1105 [2009]; Matter ofStone v Fischer, 62 AD3d 1064, 1065 [2009]). Moreover, any failings in petitioner'semployee assistance were remedied at the administrative [*2]hearing, and petitioner has failed to show that he was prejudiced bythe alleged inadequacies (see Matter ofCornwall v Fischer, 74 AD3d 1507, 1508-1509 [2010]; Matter of Bartley v Fischer, 73 AD3d1363, 1363 [2010]). Nor are we persuaded, after reviewing petitioner's constantargumentative and obstructive behavior during the hearing in the face of warnings that he couldbe removed, that the Hearing Officer erred in ultimately doing so (see Matter of Jackson v Fischer, 67AD3d 1207, 1208 [2009]; Matter ofApplewhite v Goord, 49 AD3d 1046, 1047 [2008]).
Petitioner's remaining claims, including that the Hearing Officer was biased and that thepunishment imposed shocks the conscience, have been reviewed and found to be unpersuasive.
Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.