| Matter of Vega v New York State Dept. of Correctional Servs. |
| 2012 NY Slip Op 00679 [92 AD3d 991] |
| February 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Israel Vega, Petitioner, v New York StateDepartment of Correctional Services et al, Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
As the result of an investigation, petitioner was charged in a misbehavior report withassaulting another inmate. He was found guilty of the charge following a tier III disciplinaryhearing and the determination was affirmed on administrative appeal. This CPLR article 78proceeding ensued.
Petitioner contends that he was denied a fair and impartial hearing, primarily because theHearing Officer was the watch commander and was allegedly involved in the investigation of theincidents leading to the misbehavior report.[FN*] We find this argument to be without merit. [*2]Although theHearing Officer conceded that he acted as the watch commander and knew of the incidents, hestated that he did not witness the events and did not participate in the investigation. Given thatthe Hearing Officer did not "actually witness[ ] the incident[s]," was not "directly involved in theincident[s]," and did not "investigate[ ] the incident[s]," he was not disqualified from presidingover the hearing under the pertinent regulations (7 NYCRR 254.1; see Matter of Parker v Fischer, 70AD3d 1086, 1087 [2010]). Furthermore, upon reviewing the hearing transcript, we do notfind that the Hearing Officer was biased or that the determination flowed from any alleged bias(see Matter of Truman v Fischer, 75AD3d 1019, 1020 [2010]; Matter ofArnold v Fischer, 60 AD3d 1177, 1177 [2009]). Petitioner's claims that he wasimproperly denied certain witnesses as well as documentation concerning the severity of theinmate's injuries are unavailing inasmuch as they were redundant or irrelevant to the assaultcharge (see Matter of Caraway v Herbert, 285 AD2d 778, 778-779 [2001]; Matter ofMabry v Coughlin, 196 AD2d 931 [1993], lv denied 82 NY2d 664 [1994]).
Mercure, A.P.J., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: The petition arguably raised aquestion of substantial evidence precipitating the transfer of the proceeding to this Court, butpetitioner has abandoned that issue by not addressing it in his brief (see Matter of Grant v Prack, 86 AD3d885, 886 n [2011]).