Lawrence v. Headley

257 A.D.2d 837, 685 N.Y.S.2d 118, 1999 N.Y. App. Div. LEXIS 274

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1999
• Status: Published

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging the determination finding him guilty of harassment and two counts of creating a disturbance as charged in two misbehavior reports. As related by the first misbehavior report, petitioner played his radio in a loud manner without using his headphones; the second misbehavior report alleged that petitioner yelled a remark, using obscene language, after observing a correction officer writing misbehavior reports. Notwithstanding petitioner’s contention to the contrary, the detailed misbehavior reports and corroborating testimony presented at the hearing provided substantial evidence to support the determination of petitioner’s misconduct (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Any alleged inconsistencies in the testimony presented a credibility issue for resolution by the Hearing Officer (see, Matter of Campbell v Goord, 254 AD2d 590, 590-591). While petitioner alleged that the misbehavior reports were written in retaliation for the grievance he had filed against the correction officer, the Hearing Officer, resolving an issue of credibility (see, Matter of Moncrieffe v Bennett, 251 AD2d 925), noted that the lapse of time between the grievance and the issuance of the misbehavior reports made any such claim unlikely. Furthermore, we find petitioner’s contention of Hearing Officer bias to be unavailing. The fact that the Hearing Officer resolved issues of credibility against petitioner and may have made various brusque comments to petitioner during the hearing is not indicative of bias (see, Matter of Spencer v Goord, 245 AD2d 827, 828, lv denied 91 NY2d 811; Matter of Barnhill v Coombe, 239 AD2d 719, 721). In any event, petitioner failed to establish that the outcome of the hearing flowed from the alleged bias (see, id.). To the extent that petitioner’s remaining contentions are preserved for our review, we find them to be without merit.

Mercure, J. P., Crew III, Yesawich Jr., Peters and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.