| Matter of Cruz v Bezio |
| 2010 NY Slip Op 09446 [79 AD3d 1509] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Audelis Cruz, Petitioner, v Norman R. Bezio, as Directorof 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.
Petitioner, a prison inmate, was served with a misbehavior report charging him with variousdisciplinary violations after an investigation by the Inspector General's office revealed that forgeddisbursement forms were used to withdraw money from other inmates' accounts and the money wassent to petitioner's wife. Following a tier III disciplinary hearing, petitioner was found guilty ofcounterfeiting, possessing stolen property, impersonation and violation of facility correspondence rules.That determination was upheld on administrative appeal and petitioner, thereafter, commenced thisCPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of the investigator from theInspector General's office and the related documentation, provide substantial evidence to support thedetermination of guilt (see Matter of Lawsonv Commissioner of Correctional Servs., 73 AD3d 1296, 1297 [2010]; Matter of Sanders v LaClair, 67 AD3d1226, 1226 [2009]). Contrary to petitioner's contention, the misbehavior report containedsufficient detail to apprise him of the charges against him and enable him to prepare a defense (see Matter of Arriaga v [*2]Smith, 70 AD3d 1160 [2010]; Matter of Linares v Fischer, 59 AD3d761 [2009], lv denied 12 NY3d 709 [2009]). Petitioner's denial that he had knowledge ofthe scheme presented a credibility issue to be resolved by the Hearing Officer (see Matter of Parra v Fischer, 76 AD3d724, 725 [2010], lv denied 15 NY3d 714 [2010]).
Turning to petitioner's procedural arguments, there is no merit to his contention that he wasdeprived of effective assistance. The record demonstrates that, when petitioner expresseddissatisfaction with his initial assistant, the Hearing Officer assigned another assistant and petitionerthereafter signed a form acknowledging that he had received such assistance. In any event, petitionerwas provided with all of the documentation that he requested and was given ample time to review it, orwas given a valid reason why such documentation was being denied (see Matter of Williams v Fischer, 73 AD3d1364, 1364-1365 [2010]; Matter ofScott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]).Likewise, petitioner was not improperly denied the right to call his wife as a witness given that, after theHearing Officer was initially unable to contact her via the number included in petitioner's file, petitionerdeclined to have her contacted at all (seeMatter of Cornwall v Fischer, 74 AD3d 1507, 1509 [2010]). Petitioner's contention that theHearing Officer should have recused himself is without merit, inasmuch as the record demonstrates thathe was not personally involved in the investigation (see Matter of Dubois v Bezio, 67 AD3d 1111 [2009]; Matter of Hayes v Goord, 26 AD3d550, 551 [2006]). Finally, we find that the determination of guilt flowed from the evidencepresented and not from any alleged bias on the part of the Hearing Officer (see Matter of Lamphear v Fischer, 76AD3d 1166 [2010]; Matter of Hamiltonv Bezio, 76 AD3d 1125, 1126 [2010]).
Petitioner's remaining contentions, including that the Hearing Officer failed to independently assessthe credibility of the confidential witnesses, are unpreserved or have been examined and found to bewithout merit.
Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.