| Matter of Abreu v Bezio |
| 2010 NY Slip Op 08029 [78 AD3d 1341] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Carlos Abreu, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 Supreme Court,entered in Albany County) to review a determination of the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Two female nurses visited petitioner at his cell to investigate a grievance that he had filed againstanother nurse. During this visit, petitioner exposed his genitals and, according to the nurses, started tomasturbate. He then ignored a directive by one of the nurses to stop this behavior. As a result,petitioner was charged in a misbehavior report with lewd exposure and refusing a direct order.Following a tier III disciplinary hearing, he was found guilty of the charges and a penalty of nine monthsin the special housing unit and loss of telephone, packages and commissary was imposed. Thedetermination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
Initially, notwithstanding petitioner's claim to the contrary, we find that the proceeding was properlytransferred to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Abreu v Bezio, 71 AD3d1341, 1341 [2010], appeal dismissed 15 NY3d 836 [2010]; Matter of Hamilton v Selsky, 13 AD3d844, 845 [2004], lv denied 5 NY3d 704 [2005]; see also CPLR 7804 [g]).Turning to the merits, the misbehavior report, together with the testimony of the nurses and a correctionofficer present at the scene, as well as petitioner's [*2]admission that heexposed himself, provide substantial evidence supporting the determination of guilt (see Matter of Harvey v Goord, 47 AD3d1096, 1096 [2008], appeal dismissed 10 NY3d 855 [2008]; Matter of Cortorreal v Goord, 41 AD3d1048, 1048 [2007]). Moreover, we reject petitioner's contention that he was improperly deniedwitnesses inasmuch as the testimony of the two correction officials who were denied would have beenredundant to that of another correction official who testified at the hearing (see Matter of Thorpe v Fischer, 67 AD3d1101, 1102 [2009]; Matter of McLeanv Fischer, 63 AD3d 1468, 1469 [2009]). Petitioner's claim of hearing officer bias is notsubstantiated by the record, and there is no indication that the determination of guilt flowed from anyalleged bias (see Matter of Burgess vSelsky, 50 AD3d 1347, 1348 [2008]; Matter of McNair v Goord, 265 AD2d 716[1999]). Furthermore, we cannot conclude that the penalty imposed was so disproportionate to theoffense as to be shocking to one's sense of fairness (see Matter of Wilson v Artus, 71 AD3d 1294, 1295 [2010]; Matter of Martinez v Goord, 48 AD3d851 [2008]). Finally, petitioner's remaining arguments have been considered and are unpersuasive.
Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.