| Matter of Garcia v Smith |
| 2010 NY Slip Op 08044 [78 AD3d 1362] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edwin Garcia, Petitioner, v Joseph T. Smith, asSuperintendent of Shawangunk Correctional Facility, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Ulster County) to review a determination of respondent Superintendent of ShawangunkCorrectional Facility which found petitioner guilty of violating a prison disciplinary rule.
After petitioner, a prison inmate, surrendered a package of crackers containing poppy seeds, hewas served with a misbehavior report charging him with possession of contraband. Petitioner was foundguilty following a tier II disciplinary hearing, and that determination was upheld on administrative appealwith a reduction in the penalty assessed. He thereafter commenced this CPLR article 78 proceeding.
We confirm. Petitioner's only contention is that the Hearing Officer was biased and predisposed toa finding of guilt.[FN*]However, inasmuch as petitioner admitted at the hearing that [*2]hepossessed the crackers with poppy seeds in clear violation of 7 NYCRR 270.2 (B) (14) (xix), therecord shows that the finding of guilt flowed from the evidence presented, rather than any allegedhearing officer bias (see Matter of Covingtonv Smith, 75 AD3d 708, 708 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1086 [2010]).
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Supreme Court properly transferredthe proceeding inasmuch as petitioner raised the issue of substantial evidence in his petition, but thatissue has been abandoned because petitioner failed to raise it in his brief (see Matter of Austin v Fischer, 70 AD3d1074, 1074 n [2010]; Matter of Polite vGoord, 49 AD3d 944, 944 n [2008]).