Coleman v. Goord

39 A.D.3d 1048, 834 N.Y.S.2d 368

Opinion

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

While in the food service area, petitioner began acting in an intimidating manner by calling a correction officer names, taking a stance with clenched fists and ignoring the officer’s repeated directives to leave the area. As a result, he was charged in a misbehavior report with making threats, harassing an employee, being out of place and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of harassment, being out of place and refusing a direct order. The charge of being out of place was dismissed on administrative appeal, but the rest of the determination was upheld. This CPLR article 78 proceeding ensued.

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Initially, the record does not support petitioner’s contention that the Hearing Officer was biased nor does it indicate that the determination flowed from any alleged bias (see Matter of Burgess v Goord, 34 AD3d 948, 949 [2006]; Matter of Nelson v Goord, 33 AD3d 1135, 1136 [2006]). Contrary to petitioner’s claim, the Hearing Officer did not prevent him from presenting his defense that the misbehavior report was written in retaliation for a grievance that he filed against the correction officer who wrote it. Similarly, petitioner was not denied effective employee assistance. Although petitioner takes issue with the assistant’s failure to interview witnesses, he has not demonstrated that he was prejudiced by this omission (see Matter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Petitioner’s remaining arguments are either unpreserved for our review or are lacking in merit.

Cardona, PJ., Mercure, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

While the petition arguably raises an issue of substantial evidence and the proceeding was transferred on that basis, petitioner has abandoned this claim by not raising it in his brief (see Matter of Rolon v Goord, 30 AD3d 946, 947 n [2006]).