Edwards v. Goord

11 A.D.3d 832, 783 N.Y.S.2d 317, 2004 N.Y. App. Div. LEXIS 12606

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2004
• Status: Published

Opinion

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

Petitioner was charged in a misbehavior report with verbal harassment after he made obscene comments to a female correction officer. At his tier III disciplinary hearing, petitioner maintained that the misbehavior report had been written in retaliation for a grievance he had filed against the officer, and he sought to introduce a copy of the grievance into evidence at the hearing. The Hearing Officer denied this request, and petitioner was found guilty of the charge. Following an unsuccessful administrative appeal, this CPLR article 78 proceeding ensued.

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Petitioner asserts that the Hearing Officer did not conduct the hearing in a fair and impartial manner insofar as he refused petitioner’s request to introduce a copy of the grievance into evidence at the hearing. Inasmuch as the substance of the grievance was not relevant to the charge contained in the misbehavior report, petitioner was not improperly denied the right to introduce documentary evidence at the hearing (see Matter of Giano v Duncan, 297 AD2d 865 [2002], lv denied 99 NY2d 503 [2002]; Matter of Fletcher v Murphy, 249 AD2d 638, 639 [1998]). Notably, the Hearing Officer acknowledged petitioner’s filing of the grievance in connection with his defense of retaliation. Our review of the transcript of the disciplinary hearing does not reveal that the Hearing Officer was biased or that the outcome of the hearing flowed from any alleged bias (see Matter of McCorkle v Bennett, 8 AD3d 918, 919 [2004]). Accordingly, the determination must be confirmed.

Cardona, PJ., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed..

We note that although petitioner raised an issue of substantial evidence in the petition, he has failed to address it in his brief. Consequently, we deem it abandoned (see Matter of Garcia v Goord, 308 AD2d 609, 610 n [2003]).