| Matter of White v Fischer |
| 2012 NY Slip Op 04060 [95 AD3d 1582] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of John H. White, Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
As a result of his failure to provide a urine sample for testing, petitioner was charged in amisbehavior report with refusing a direct order and violating urinalysis testing procedures. Hewas found guilty of the charges at the conclusion of a tier III disciplinary hearing, and thedetermination was affirmed upon administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, together with the hearing testimony, providesubstantial evidence supporting the determination of guilt (see Matter of Sital v Fischer, 72 AD3d 1306, 1307 [2010], lvdismissed 15 NY3d 823 [2010]; Matter of Credle v Selsky, 46 AD3d 989, 990 [2007]). Petitioner'sclaim that the misbehavior report was filed in retaliation for a grievance presented a credibilityissue for the Hearing Officer to resolve (see Matter of Sital v Fischer, 72 AD3d at 1307;Matter of Becker v Goord, 13 AD3d947, 948 [2004]). While petitioner maintains that the Hearing Officer did not give propercredit to his defense, this is not indicative of bias, and there is nothing in the record to suggestthat the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Marino v New York State[*2]Dept. of Correctional Servs., 41 AD3d 1004, 1005[2007], appeal dismissed and lv denied 9 NY3d 940 [2007]; Matter of Hoover v Goord, 38 AD3d1069, 1070 [2007], lv denied 8 NY3d 816 [2007]).
Mercure, J.P., Lahtinen, Spain, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.