| Matter of Machicote v Bezio |
| 2011 NY Slip Op 06152 [87 AD3d 763] |
| August 4, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jason Machicote, Petitioner, v Norman R. Bezio, asDirector 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 certain prison disciplinary rules.
After petitioner, a prison inmate, was observed acting furtively and drinking a large quantityof water during a visit with family, he was placed on contraband watch. Thereafter, a search ofpetitioner's feces revealed pieces of balloon and cellophane and he was charged in a misbehaviorreport with possessing narcotic paraphernalia and contraband, smuggling and violating visitingprocedures. Petitioner was found guilty of all charges following a tier III disciplinary hearing andthat determination was affirmed administratively. He then commenced this CPLR article 78proceeding.
We confirm. The detailed misbehavior report, supporting documentation, pictures of theitems found pursuant to the search and testimony of the correction officers involved providesubstantial evidence to support the determination of guilt (see Matter of Hayes v Fischer, 78 AD3d 1396, 1396-1397 [2010];Matter of Tafari v Selsky, 77 AD3d991, 991 [2010], lv denied 16 NY3d 706 [2011]). Petitioner's denials and theaffidavit from his prisoner witness raised credibility issues for the Hearing Officer to resolve (see Matter of Genis v New York StateDept. [*2]of Correctional Servs., 80 AD3d 1032, 1033[2011]; Matter of Lovett v Smith,80 AD3d 1039, 1040 [2011]).
Turning to petitioner's procedural contentions, we find no support for his allegation thatsignificant portions of the hearing were not recorded. Although there were minor gaps in thetranscript, they do not prevent meaningful review (see Matter of Weems v Fischer, 82 AD3d 1454, 1456 [2011]; Matter of Anthony v Fischer, 81 AD3d1027, 1028 [2011]). Petitioner's claim that he received inadequate assistance based on hisassistant's alleged failure to locate inmates who were under watch at the same time isunpreserved for our review by his failure to note that request on his assistant form or bring theissue to light during the hearing (seeMatter of Tafari v Selsky, 77 AD3d 992, 992-993 [2010], lv dismissed 16 NY3d783 [2011]). Finally, our review of the record demonstrates that the determination of guilt wasfounded upon the evidence presented at the hearing, rather than any alleged hearing officer bias(see Matter of Weems v Fischer, 82 AD3d at 1456; Matter of Mayo v Fischer, 82 AD3d 1421, 1422 [2011], lvdenied 17 NY3d 702 [2011]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.