| Matter of Harris v Kaplin |
| 2013 NY Slip Op 00089 [102 AD3d 692] |
| January 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Audra Harris, Petitioner, v SabinaKaplin et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavekand Claude S. Platton of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of theSuperintendent of the Bedford Hills Correctional Facility dated June 18, 2010, whichconfirmed a determination of a hearing officer dated May 18, 2010, made after a tier IIIsuperintendent's hearing, finding the petitioner guilty of violating certain prisondisciplinary rules, and imposing penalties.
Adjudged that the determination is confirmed, the petition is denied, and theproceeding is dismissed on the merits, without costs or disbursements.
The petitioner commenced this CPLR article 78 proceeding seeking to review adetermination, following a tier III superintendent's hearing, that she violated inmate rules104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), 106.10 (7 NYCRR 270.2[B] [7] [i] [failure to obey an order]), 107.10 (7 NYCRR 270.2 [B] [8] [i] [interferencewith an employee]), 107.11 (7 NYCRR 270.2 [B] [8] [ii] [harassment of an employee]),and 109.12 (7 NYCRR 270.2 [B] [10] [iii] [movement violation]). At thesuperintendent's hearing (see 7 NYCRR part 254), the petitioner admitted to mostof the conduct underlying the violations, but maintained that the subject dispute arosebecause the correction officer involved was rude to her, cursed at her, and threatened her.She asserted that if certain video and audio tapes of the area in which the incidentoccurred were reviewed, they would show that her representations were accurate. In thisCPLR article 78 proceeding, the petitioner contends that she was improperly deniedaccess to those tapes, which she requested in accordance with 7 NYCRR 254.6 (a) (3).
Certain portions of the hearing were not transcribed because they were inaudible,leaving unanswered the questions of whether the hearing officer viewed the subjecttapes, whether the subject tapes existed, and why the tapes were unavailable to thepetitioner. Remittal, however, is not warranted under these circumstances (cf. Matter of Baez v Bezio, 77AD3d 745, 746 [2010]), as any error in denying the petitioner's requests washarmless. Even if the subject tapes confirmed the petitioner's representations about thecorrection officer's behavior, she was not at liberty to violate the prison rules (seeMatter of Rivera v Smith, 63 NY2d 501, 515-516 [1984]; Matter of Hogan v Fischer, 90AD3d 1544, 1545 [2011]; Matter of Parrilla v Senkowski, 300 AD2d 870,871 [2002]; Matter of Farid v [*2]Coombe, 236AD2d 660 [1997]; Matter of Keith v Coombe, 235 AD2d 879, 880 [1997])."Petitioner's only acceptable course of action was to obey the order and file a grievance"(Matter of Parrilla v Senkowski, 300 AD2d at 871; see Matter of Rivera vSmith, 63 NY2d at 515-516).
The determination that the petitioner committed the charged violations wassupported by substantial evidence (see generally Matter of Bryant v Coughlin, 77NY2d 642, 647 [1991]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]).
The petitioner failed to demonstrate that the hearing officer was biased against her.The record reveals that the hearing was conducted in a fair and impartial manner, andthat the determination was not the result of any alleged bias on the part of the hearingofficer (see Matter of Carlisle vLee, 96 AD3d 837 [2012]; Matter of Reyes v Leclaire, 49 AD3d 884, 885 [2008]; Matter of Smythe v Goord, 41AD3d 608, 609 [2007]; Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]; Matter of De La Cruz v Selsky,36 AD3d 907 [2007]).
Inasmuch as it appears from the record that the petitioner has already served heradministrative penalty and there was no recommended loss of good-time credit, thepetitioner's argument that the penalty imposed was disproportionate to the offenses hasbeen rendered academic (cf.Matter of Farooq v Fischer, 99 AD3d 709 [2012]; Matter of Rodriguez v Fischer,96 AD3d 1374, 1375 [2012]; Matter of Maybanks v Goord, 306 AD2d 839,840 [2003]).
The petitioner's remaining contentions are without merit. Rivera, J.P., Balkin,Leventhal and Hinds-Radix, JJ., concur.