| Matter of Barnes v Bezio |
| 2011 NY Slip Op 06058 [86 AD3d 884] |
| July 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jessie J. Barnes, Petitioner, v NormanBezio, as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 a prison disciplinary rule.
After correction officials received confidential information that petitioner was in possessionof a weapon, petitioner was pat frisked and a sharpened metal rod with a cloth handle was foundin the right front pocket of his pants. As a result, he was charged in a misbehavior report withpossessing a weapon and was found guilty of this charge at the conclusion of a tier IIIdisciplinary hearing. The determination was later affirmed on administrative appeal, resulting inthis CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of correction officials involved in the friskand related documentation, including a picture of the weapon, provide substantial evidencesupporting the determination of guilt (see Matter of Robertson v Fischer, 70 AD3d 1081, 1081 [2010]; Matter of Cruz v Fischer, 57 AD3d1055 [2008]). Petitioner's claim that the weapon was planted and the misbehavior reportwritten in retaliation for a complaint filed against another correction officer is belied by thetestimony of that officer and presented a credibility issue for the Hearing Officer to resolve (see Matter of Lopez v Fischer, 69AD3d 1076, 1076 [2010]; [*2]Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]).Although petitioner also asserts that he was denied adequate employee assistance, anydeficiencies were remedied by the Hearing Officer to petitioner's satisfaction and he has notdemonstrated that he was prejudiced (see Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]; Matter of Rivera v Goord, 38 AD3d964, 964 [2007]). Furthermore, we find no merit to petitioner's claim that the hearing wasnot conducted in a fair and impartial manner, and there is no indication in the record that thedetermination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Griffin v Goord, 43AD3d 591, 591 [2007]; Matter ofAl-Matin v Artus, 43 AD3d 497, 498 [2007]). Petitioner's remaining contentions,including his claims that he was denied witnesses and relevant documentary evidence, have beenconsidered and are unavailing.
Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.