Burgess v. Goord

Appellate Division of the Supreme Court of New York

Burgess v. Goord

45 A.D.3d 1144, 844 N.Y.S.2d 914

Appellate Division of the Supreme Court of the State of New York·Decided November 21, 2007·Published·Cited by 4 cases

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) [1145]*1145to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was found to be in possession of two law library books, one of which was concealed by a cover and the other having the library marking torn out. At the conclusion of the ensuing tier III disciplinary hearing, he was found guilty of smuggling, altering items and damaging state property. The determination was upheld on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report and testimony adduced at the hearing (see Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943 [2007]). Contrary to petitioner’s assertion, there is no indication in the record that the Hearing Officer was biased or that the determination at hand flowed from any alleged bias (see Matter of Nieves v Goord, 39 AD3d 1104, 1105 [2007]). Petitioner’s remaining contention that he was improperly denied the right to call a witness has been examined and found to be unavailing.

Crew III, J.P., Peters, Spain, Carpinello and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) [1145]*1145to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was found to be in possession of two law library books, one of which was concealed by a cover and the other having the library marking torn out. At the conclusion of the ensuing tier III disciplinary hearing, he was found guilty of smuggling, altering items and damaging state property. The determination was upheld on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report and testimony adduced at the hearing (see Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1113-1114 [2006], appeal dismissed 8 NY3d 943 [2007]). Contrary to petitioner’s assertion, there is no indication in the record that the Hearing Officer was biased or that the determination at hand flowed from any alleged bias (see Matter of Nieves v Goord, 39 AD3d 1104, 1105 [2007]). Petitioner’s remaining contention that he was improperly denied the right to call a witness has been examined and found to be unavailing.

Crew III, J.P., Peters, Spain, Carpinello and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Burgess v. Goord, 45 A.D.3d 1144, 844 N.Y.S.2d 914 (N.Y. Ct. App. 2007).

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Opinion

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